United States v. Salvador Hernandez, Jr. , 586 F. App'x 370 ( 2014 )

FILED
NOT FOR PUBLICATION DEC 04 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-50371
Plaintiff - Appellee, D.C. No. 5:10-cr-00009-VAP-1
v.
MEMORANDUM*
SALVADOR OROZCO HERNANDEZ,
Jr., AKA Sal Hernandez, AKA Salvador
Hernandez, AKA Sal Orosco, AKA
Orozco, AKA Sal Orozco, AKA Pony
Boy, AKA Hernandez Sal, AKA Tio,
AKA Toro,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, District Judge, Presiding
Argued and Submitted November 21, 2014
Pasadena, California
Before: W. FLETCHER and BYBEE, Circuit Judges, and EZRA, District Judge.**
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable David A. Ezra, District Judge for the U.S. District
Court for the Western District of Texas, sitting by designation.
The facts and procedural posture of this case are known to the parties, and
we do not repeat them here. Appellant Salvador Orozco Hernandez, Jr. appeals his
conviction by guilty plea for participation in a drug conspiracy and RICO
conspiracy, in violation of 21 U.S.C. § 846 and 18 U.S.C. § 1962(d), respectively.
We dismiss the appeal because Hernandez waived his right to appeal in the plea
agreement he entered on November 28, 2011.
“[A] defendant’s waiver of his appellate rights is enforceable if (1) the
language of the waiver encompasses his right to appeal on the grounds raised, and
(2) the waiver is knowingly and voluntarily made.” United States v. Charles, 581
F.3d 927, 931 (9th Cir. 2009) (quoting United States v. Jeronimo, 398 F.3d 1149,
1154 (9th Cir. 2005)) (internal quotation marks omitted). Here, Hernandez signed
a plea agreement in which he waived his right to appeal his conviction unless he
based that appeal on a claim that his guilty plea was involuntary. Hernandez bases
this appeal on his counsel’s alleged conflict of interest when counsel moved to
withdraw Hernandez’s guilty plea.
Granted, Hernandez makes occasional references not supported by evidence
to his counsel’s ineffective assistance of counsel “during the plea proceedings” or
“prior to a plea,” and he states once that his counsel’s “incompetence” caused “him
to enter an otherwise involuntary plea.” But his primary arguments on appeal urge
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this Court to find a Sixth Amendment violation due to counsel’s conflict during the
plea withdrawal stage. Because Hernandez waived “any right to appeal [his]
convictions” in the plea agreement (except for an appeal based on a claim that his
pleas were involuntary), and because his appeal is based on a claim of ineffective
assistance of counsel during post-plea-agreement proceedings, the language of his
appeal waiver encompasses the current appeal.
The only question remaining is whether Hernandez’s appeal waiver was
“knowingly and voluntarily made.” Charles, 581 F.3d at 931 (citation and internal
quotation marks omitted). On this point, the record and the district court findings
as they currently stand are clear: Hernandez knowingly and voluntarily entered
into the plea agreement. Hernandez confirmed that he understood and agreed to
the appellate waiver and the overall plea agreement several times throughout the
record. We therefore reject any claim that Hernandez waived his right to appeal
involuntarily or without full knowledge. See United States v. Harris, 628 F.3d
1203, 1206 (9th Cir. 2011).
We hold on the current record that the appeal waiver in the plea agreement is
enforceable, and Hernandez’s appeal falls within that waiver because it is not based
on a claim of involuntariness of his guilty plea. Our opinion does not foreclose
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Hernandez from seeking habeas relief under 28 U.S.C. § 2255. See United States
v. Rahman, 642 F.3d 1257, 1259–60 (9th Cir. 2011).
DISMISSED.
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