Opinion
This panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Rm. 3654, USF--Office of the U.S. Attorney, Fresno, CA, for Plaintiff-Appellee.
Joan Jacobs Levie, Esq., Law Offices of Joan Jacobs Levie, Fresno, CA, for Defendant-Appellant.
Appeal from the United States District Court for the Eastern District of California, Robert E. Coyle, Senior Judge, Presiding. D.C. No. CV-02-05562-REC.
Before: KOZINSKI and MCKEOWN, Circuit Judges, and HOGAN, District Judge.
The Honorable Michael R. Hogan, United States District Judge for the District of Oregon, sitting by designation.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
Raul Tirado Garcia appeals from the district court's denial of his § 2255 petition alleging ineffective assistance of counsel and improper sentencing. Garcia pled guilty to four drug-related offenses and entered into a plea agreement that waived the right to appeal or collaterally attack any issue related to his conviction or sentence.
Page 781.
"The sole test of a waiver's validity is whether it was made knowingly and voluntarily." United States v. Anglin, 215 F.3d 1064, 1068 (9th Cir.2000). Garcia challenges his waiver on the basis of an alleged Rule 11 violation. However, "even the voluntariness and intelligence of a guilty plea can be attacked on collateral review only if first challenged on direct review." Bousley v. United States, 523 U.S. 614, 621, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998). Garcia did not raise his Rule 11 objection on direct review or in his § 2255 petition. This argument is now waived.
Garcia also argues that a waiver is unenforceable with respect to an illegal sentence. Even if Garcia has a claim that survives under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), his sentence does not violate the rule in that case. See United States v. Toliver, 351 F.3d 423, 432-33 (9th Cir.2003). Nor does Garcia's sentence violate United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); recently we joined "every other circuit that has considered the question" in holding that Booker does not apply to sentences that became final prior to its decision. United States v. Cruz, 423 F.3d 1119, 1120 (9th Cir.2005) (per curiam).
As Garcia's waiver is enforceable, we lack jurisdiction to hear the balance of his claims.
DISMISSED in part and AFFIRMED in part.