                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        APR 22 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                        No. 18-10249

                Plaintiff-Appellee,              D.C. No. 1:17-cr-00124-LJO-SKO-1

 v.
                                                 MEMORANDUM*
JOSUE MERCADO-REYES, AKA Jose
Mercado Reyes, AKA Samuel Ortiz Frausto,
AKA Samual Ortiz Ortiz, AKA Antonio
Solorio-Reyes,

                Defendant-Appellant.


                   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).
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.




                                          2                                    18-10249
