UNITED STATES v. SAPIEN (2019)

MEMORANDUM **

Richard Sapien appeals from the district court’s judgment and challenges the 100-month sentence imposed following his guilty-plea conviction for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). We dismiss.

Sapien argues that the district court erred by enhancing his base offense level under U.S.S.G. § 2K2.1(a)(2), contending that his prior convictions for assault with a deadly weapon under California Penal Code § 245(a)(1) are not crimes of violence. The government contends that this appeal is barred by a valid appeal waiver. We review the enforceability of an appeal waiver de novo. See United States v. Watson, 582 F.3d 974, 981 (9th Cir. 2009).

The language of the appeal waiver in Sapien’s plea agreement unambiguously encompasses the claims he seeks to raise. See id. at 986. Contrary to his contention, Sapien’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.”); see also United States v. Vasquez-Gonzalez, 901 F.3d 1060, 1068 (9th Cir. 2018) (a conviction under California Penal Code § 245(a)(1) is categorically a crime of violence). Moreover, the record does not support Sapien’s claim that the district court provided an unqualified advisement at the sentencing hearing that he had a right to appeal. See United States v. Arias-Espinosa, 704 F.3d 616, 619-20 (9th Cir. 2012). Finally, we decline to reach on direct appeal Sapien’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 waiver. See id. at 1260.

DISMISSED.