United States of America v. Gabriel Clark-Aigner

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
GABRIEL CLARK-AIGNER,
Defendant-Appellant.
No. 17-36006
D.C. Nos. 3:16-cv-00095-TMB
3:02-cr-00007-SLG-1
MEMORANDUM*
Appeal from the United States District Court
for the District of Alaska
Sharon L. Gleason, District Judge, Presiding
Submitted December 9, 2021**
Seattle, Washington
Before: McKEOWN and BADE, Circuit Judges, and FITZWATER,*** District Judge.
Gabriel Clark-Aigner (“Clark-Aigner”) and accomplices were indicted for
participating in two completed robberies and one attempted robbery of a motel in
FILED
JAN 4 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).
*** The Honorable Sidney A. Fitzwater, United States District Judge for the
Northern District of Texas, sitting by designation.

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Anchorage, Alaska. Pursuant to a plea agreement, Clark-Aigner pleaded guilty to two
counts of interference with commerce by robbery (Hobbs Act robbery) in violation
of 18 U.S.C. § 1951(a), and two counts of using and brandishing a firearm during a
crime of violence in violation of 18 U.S.C. § 924(c). Under the plea agreement, the
government agreed to dismiss all remaining counts against Clark-Aigner, and he
agreed to a broad waiver of his rights to collaterally attack his convictions and
sentence. The district court sentenced Clark-Aigner to 300 months’ imprisonment.
Clark-Aigner then brought a motion under 28 U.S.C. § 2255 collaterally attacking his
§ 924(c) convictions, arguing that they are unconstitutional in light of the Supreme
Court’s decision in United States v. Davis, 139 S. Ct. 2319 (2019). The district court
denied Clark-Aigner’s motion. It adopted the magistrate judge’s final report, which
recommended that Clark-Aigner’s motion be denied on the ground, inter alia, that he
had waived the right to collaterally attack his conviction in his plea agreement.
A defendant may waive his right to collaterally attack his sentence or
conviction. See United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1993). Such
a waiver is enforceable if “(1) the language of the waiver encompasses [the
defendant’s] right to appeal on the grounds raised, and (2) the waiver is knowingly
and voluntarily made.” United States v. Goodall, — F.4th —, 2021 WL 6132016, at
*5 (9th Cir. 2021) (alteration in original) (internal quotation marks omitted)
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(discussing the closely related topic of appeal waivers). We have recognized that an
appeal waiver will not apply if the sentence is illegal. See United States v. Bibler, 495
F.3d 621, 624 (9th Cir. 2007) (as amended). But this exception does not apply to
challenges to purportedly illegal convictions—such as the challenge that Clark-Aigner
makes here. See Goodall, — F.4th —, 2021 WL 6132016, at *6-8 (explaining that the
illegal sentence exception does not authorize challenges to illegal convictions). We
review de novo whether Clark-Aigner has waived his right to collaterally attack his
§ 924(c) convictions. See Bibler, 495 F.3d at 623 (citing United States v. Jeronimo,
398 F.3d 1149, 1153 (9th Cir. 2005)).
Clark-Aigner’s plea agreement contains a broad collateral attack waiver, with
only two exceptions: ineffective assistance of counsel, and “a challenge to the
voluntariness of his guilty plea.” In his briefing on appeal, Clark-Aigner does not
address the district court’s enforcement of the collateral attack waiver, and he does not
raise arguments related to ineffective assistance of counsel or the voluntariness of his
guilty plea. We therefore conclude that he has waived his right to collaterally attack
his convictions. See Abarca, 985 F.2d at 1014.
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Accordingly, we affirm the district court’s denial of Clark-Aigner’s § 2255
motion as barred by the collateral attack waiver in his plea agreement. See id.;
Goodall, — F.4th —, 2021 WL 6132016, at *8.
AFFIRMED.
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