United States v. Denis Calix-Gonzalez , 583 F. App'x 751 ( 2014 )


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  •                                                                                FILED
    NOT FOR PUBLICATION                                 JUL 23 2014
    MOLLY C. DWYER, CLERK
    UNITED STATES COURT OF APPEALS                           U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA,                        No. 13-10070
    Plaintiff-Appellee,                D.C. No. 4:12-cr-01587-DCB
    v.
    MEMORANDUM*
    DENIS JOEL CALIX-GONZALEZ,
    Defendant-Appellant.
    Appeal from the United States District Court
    for the District of Arizona
    Daniel L. Hovland, District Judge, Presiding
    Argued and Submitted July 11, 2014
    San Francisco, California
    Before: N.R. SMITH and CHRISTEN, Circuit Judges, and PIERSOL, Senior
    District Judge.**
    Denis Joel Calix-Gonzalez appeals from the 70-month sentence imposed
    following his guilty-plea conviction for illegal reentry after deportation in violation
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by 9th Cir. R. 36-3.
    **
    The Honorable Lawrence L. Piersol, Senior District Judge for the U.S.
    District Court for the District of South Dakota, sitting by designation.
    of 8 U.S.C. § 1326(a), with a sentencing enhancement under 8 U.S.C. § 1326(b). We
    have jurisdiction under 28 U.S.C. § 1291, and we dismiss.
    Calix contends that the appeal waiver in his plea agreement is unenforceable.
    After careful de novo review, we enforce the appeal waiver. See United States v.
    Shimoda, 
    334 F.3d 846
    , 848 (9th Cir. 2003) (whether an appellant has waived his right
    to appeal is a question of law that we review de novo).
    A defendant's waiver of his appellate rights is enforceable if the language of the
    waiver encompasses his right to appeal on the grounds raised, and if the waiver was
    knowingly and voluntarily made. See United States v. Baramdyka, 
    95 F.3d 840
    , 843
    (9th Cir. 1996). We are satisfied that Calix’s argument on appeal falls within the
    scope of the waiver and that Calix entered into both the plea agreement and the appeal
    waiver knowingly and voluntarily, as demonstrated by the express language of the
    plea agreement waiving his right to appeal any aspect of his sentence, and by the
    transcript of the change of plea hearing showing that the court complied with Federal
    Rule of Criminal Procedure 11, including an admonishment regarding the appeal
    waiver.
    A portion of the district court’s comments made at the sentencing hearing
    explaining his right to appeal are ambivalent but, contrary to Calix’s contention, do
    2
    not invalidate the appeal waiver. See United States v. Aguilar-Muniz, 
    156 F.3d 974
    ,
    977 (9th Cir. 1998). We therefore enforce the waiver and dismiss the appeal.
    DISMISSED.
    3
    

Document Info

Docket Number: 13-10070

Citation Numbers: 583 F. App'x 751

Judges: Smith, Christen, Piersol

Filed Date: 7/23/2014

Precedential Status: Non-Precedential

Modified Date: 11/6/2024