USA V. KEITH ROSE, No. 17-16769 (9th Cir. 2021)
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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS DEC 21 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, No. 17-16769 D.C. Nos. 1:16-cv-00916-LJO 1:07-cr-00156-LJO-4 v. MEMORANDUM* KEITH ROSE, Defendant-Appellant. 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 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. 2 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 3 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. 4
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