United States of America v. Keith Rose

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KEITH ROSE,
Defendant-Appellant.
No. 17-16769
D.C. Nos. 1:16-cv-00916-LJO
1:07-cr-00156-LJO-4
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O'Neill, District Judge, Presiding
Submitted December 8, 2021**
Pasadena, California
Before: BEA and LEE, Circuit Judges, and BENNETT,*** District Judge.
After participating in a series of armed robberies, Keith Rose pled guilty to
one count of conspiracy to commit Hobbs Act robbery in violation of 18 U.S.C.
§ 1951, and one count of brandishing a firearm during and in relation to a crime of
* 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 Richard D. Bennett, United States District Judge for
FILED
DEC 21 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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violence in violation of 18 U.S.C. § 924(c). As part of his plea agreement, Rose
agreed to an appellate waiver in which he relinquished “all Constitutional and
statutory rights . . . to attack collaterally . . . his plea, or his sentence, including . . .
filing a motion under 28 U.S.C. § 2255 . . . .” Rose was sentenced to 78 and
222-months imprisonment for his conspiracy and § 924(c) convictions,
respectively.
Years later, after the Supreme Court decided Johnson v. United States, 576
U.S. 591 (2015), Rose filed a motion under 28 U.S.C. § 2255 asking the district
court to vacate his § 924(c) conviction, arguing he did not commit a predicate
“crime of violence.” After the district court denied Rose’s § 2255 motion, we
granted his request for a Certificate of Appealability (COA) on the issue of
“whether [Rose’s] conviction and sentence for violating 18 U.S.C. § 924(c) must
be vacated because conspiracy to commit Hobbs Act robbery is not a qualifying
predicate crime of violence.” We dismiss Rose’s appeal as barred by his appellate
waiver.
We review de novo whether a defendant has waived his right to collaterally
attack his conviction and sentence. Id. A defendant’s appellate waiver 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
the District of Maryland, sitting by designation.

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States v. Jeronimo, 398 F.3d 1149, 1153 (9th Cir. 2005), overruled on other
grounds by United States v. Jacobo Castillo, 496 F.3d 947, 957 (9th Cir. 2007) (en
banc).
The government argues that both requirements for enforceability are met
because the language of the appellate waiver clearly encompasses § 2255 motions
and the district court engaged with Rose in a Rule 11 colloquy to ensure he
knowingly and voluntarily waived his appellate rights. See Fed. R. Crim. P. 11(b).
We agree. Rose does not dispute that the requirements for enforcing the waiver are
met but argues that our circuit’s “illegal sentence” exception to enforcing
otherwise valid appellate waivers applies. See United States v. Torres, 828 F.3d
1113, 1124–25 (9th Cir. 2016). Rose claims that his § 924(c) conviction is illegal
and thus any sentence imposed for that conviction is also illegal.
Our circuit recently rejected an identical argument in United States v.
Goodall, 15 F.4th 987 (9th Cir. 2021). In Goodall, we declined to extend Torres’s
“illegal sentence” exception to “invalidate an appellate waiver if the conviction
was later found to be ‘illegal.’” Id. at 995. Here, as in Goodall, the government
agreed to drop numerous charges in exchange for Rose’s guilty plea. Id. at 997.
And, like the defendant in Goodall, Rose attacks his plea agreement, seeking
vacatur of his § 924(c) conviction based on a later change in the law. Id. at 996.
Rose “assume[d] the risk of later changes in the law” and “cannot enjoy the fruits

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of his favorable plea agreement and then later claim the deal is rotten.” Id.
Therefore, we dismiss Rose’s appeal as barred by his appellate waiver. See
Jeronimo, 398 F.3d at 1152–53 (“We lack jurisdiction to entertain appeals where
there was a valid and enforceable waiver of the right to appeal.”).
Because the appellate waiver forecloses his appeal, we do not decide the
merits of Rose’s argument that he did not commit a predicate “crime of violence”
under United States v. Davis, 139 S. Ct. 2319 (2019), and Rosemond v. United
States, 572 U.S. 65 (2014).
We therefore DISMISS this appeal.

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