United States of America v. Denis Joel Calix-Gonzalez

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DENIS JOEL CALIX-GONZALEZ,
Defendant-Appellant.
No. 13-10070
D.C. No. 4:12-cr-01587-DCB
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Daniel L. Hovland, District Judge, Presiding
Argued and Submitted July 11, 2014
San Francisco, California
Before: N.R. SMITH and CHRISTEN, Circuit Judges, and PIERSOL, Senior
District Judge. **
Denis Joel Calix-Gonzalez appeals from the 70-month sentence imposed
following his guilty-plea conviction for illegal reentry after deportation in violation
FILED
JUL 23 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable Lawrence L. Piersol, Senior District Judge for the U.S.
District Court for the District of South Dakota, sitting by designation.

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of 8 U.S.C. § 1326(a), with a sentencing enhancement under 8 U.S.C. § 1326(b). We
have jurisdiction under 28 U.S.C. § 1291, and we dismiss.
Calix contends that the appeal waiver in his plea agreement is unenforceable.
After careful de novo review, we enforce the appeal waiver. See United States v.
Shimoda, 334 F.3d 846, 848 (9th Cir. 2003) (whether an appellant has waived his right
to appeal is a question of law that we review de novo).
A defendant's waiver of his appellate rights is enforceable if the language of the
waiver encompasses his right to appeal on the grounds raised, and if the waiver was
knowingly and voluntarily made. See United States v. Baramdyka, 95 F.3d 840, 843
(9th Cir. 1996). We are satisfied that Calix’s argument on appeal falls within the
scope of the waiver and that Calix entered into both the plea agreement and the appeal
waiver knowingly and voluntarily, as demonstrated by the express language of the
plea agreement waiving his right to appeal any aspect of his sentence, and by the
transcript of the change of plea hearing showing that the court complied with Federal
Rule of Criminal Procedure 11, including an admonishment regarding the appeal
waiver.
A portion of the district court’s comments made at the sentencing hearing
explaining his right to appeal are ambivalent but, contrary to Calix’s contention, do
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not invalidate the appeal waiver. See United States v. Aguilar-Muniz, 156 F.3d 974,
977 (9th Cir. 1998). We therefore enforce the waiver and dismiss the appeal.
DISMISSED.
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