Opinion
No. 18-10249
04-22-2019
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOSUE MERCADO-REYES, AKA Jose Mercado Reyes, AKA Samuel Ortiz Frausto, AKA Samual Ortiz Ortiz, AKA Antonio Solorio-Reyes, Defendant-Appellant.
NOT FOR PUBLICATION
D.C. No. 1:17-cr-00124-LJO-SKO-1 MEMORANDUM Appeal from the United States District Court for the Eastern District of California
Lawrence J. O'Neill, District Judge, Presiding Before: McKEOWN, BYBEE, and OWENS, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
Josue Mercado-Reyes appeals from the district court's judgment and challenges the 77-month sentence imposed following his guilty-plea conviction for being a deported alien found in the United States, in violation of 8 U.S.C. § 1326. We dismiss.
Mercado-Reyes argues that the district court erred by imposing a 16-level enhancement to his base offense level under U.S.S.G. § 2L1.2(b)(1)(A) (2014). The government contends that this appeal is barred by a valid appeal waiver. We review de novo whether a defendant has waived his right to appeal. See United States v. Watson, 582 F.3d 974, 981 (9th Cir. 2009). The language of the appeal waiver in Mercado-Reyes's plea agreement unambiguously encompasses the claim raised in this appeal. See id. at 986. Contrary to his contention, Mercado-Reyes's sentence is not illegal. See United States v. Bibler, 495 F.3d 621, 624 (9th Cir. 2007) ("A sentence is illegal if it exceeds the permissible statutory penalty for the crime or violates the Constitution."). Moreover, we decline to consider on direct appeal Mercado-Reyes's claim that his counsel was ineffective. See United States v. Rahman, 642 F.3d 1257, 1259-60 (9th Cir. 2011). Accordingly, we dismiss pursuant to the valid appeal waiver. See id. at 1260.
DISMISSED.