United States of America v. JOSUE MERCADO-REYES, AKA Jose Mercado Reyes, AKA Samuel Ortiz Frausto, AKA Samual…

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
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.
No. 18-10249
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
Submitted April 17, 2019**
Before: McKEOWN, BYBEE, and OWENS, Circuit Judges.
Josue Mercado-Reyes appeals from the district court’s judgment and
challenges the 77-month sentence imposed following his guilty-plea conviction for
* 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
APR 22 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 18-10249
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.

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