United States of America v. Jose Figueroa

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOSE FIGUEROA,
Defendant-Appellant.
No. 18-16151
D.C. Nos.
2:16-cv-01343-JCM
2:11-cr-00091-JCM-CWH-2
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Submitted March 16, 2022**
Before: SILVERMAN, MILLER, and BUMATAY, Circuit Judges.
Jose Figueroa appeals from the district court’s order 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).
FILED
MAR 23 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 18-16151
Figueroa 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 Figueroa’s claim is barred by the collateral attack waiver
in his plea agreement. Figueroa argues that the waiver is not enforceable because
his attack on his § 924(c) conviction and sentence falls within the illegal sentence
exception recognized 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 Figueroa’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.

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