United States v. Jorge Rojo ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 23 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-15708
Plaintiff-Appellee, D.C. Nos.
2:16-cv-01440-LDG
v. 2:12-cr-00216-LDG-VCF-3
JORGE ROJO,
MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Nevada
Lloyd D. George, District Judge, Presiding
Submitted March 16, 2022**
Before: SILVERMAN, MILLER, and BUMATAY, Circuit Judges.
Jorge Rojo appeals from the district court’s judgment denying his 28 U.S.C.
§ 2255 motion to vacate, set aside, or correct his sentence. We have jurisdiction
under 28 U.S.C. § 2253. Reviewing de novo, see United States v. Hill, 915 F.3d
669, 673 (9th Cir. 2019), we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Rojo contends that his conviction and sentence under 18 U.S.C. § 924(c)
must be vacated because aiding and abetting Hobbs Act robbery is not a qualifying
predicate crime of violence. We need not reach this argument because we agree
with the government that Rojo’s claim is barred by the collateral attack waiver in
his plea agreement. Rojo argues that the waiver is not enforceable because his
attack on his § 924(c) conviction and sentence falls within the illegal sentence
exception discussed in United States v. Torres, 828 F.3d 1113, 1125 (9th Cir.
2016). However, this exception does not apply where, as in this case, the
challenge is to a purportedly illegal conviction. See United States v. Goodall, 21
F.4th 555, 562-65 (9th Cir. 2021) (holding that the illegal sentence exception to
appellate waivers does not apply to challenges to illegal convictions). Because the
collateral attack waiver forecloses § 2255 relief, we affirm the denial of Rojo’s
motion. See White v. Klitzkie, 281 F.3d 920, 922 (9th Cir. 2002) (“[W]e can affirm
the district court on any ground supported by the record.”).
AFFIRMED.
2 20-15708