                                                                              FILED
                           NOT FOR PUBLICATION                                DEC 04 2014

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-50371

              Plaintiff - Appellee,              D.C. No. 5:10-cr-00009-VAP-1

  v.
                                                 MEMORANDUM*
SALVADOR OROZCO HERNANDEZ,
Jr., AKA Sal Hernandez, AKA Salvador
Hernandez, AKA Sal Orosco, AKA
Orozco, AKA Sal Orozco, AKA Pony
Boy, AKA Hernandez Sal, AKA Tio,
AKA Toro,

              Defendant - Appellant.


                   Appeal from the United States District Court
                       for the Central District of California
                   Virginia A. Phillips, District Judge, Presiding

                    Argued and Submitted November 21, 2014
                              Pasadena, California

Before: W. FLETCHER and BYBEE, Circuit Judges, and EZRA, District Judge.**



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable David A. Ezra, District Judge for the U.S. District
Court for the Western District of Texas, sitting by designation.
      The facts and procedural posture of this case are known to the parties, and

we do not repeat them here. Appellant Salvador Orozco Hernandez, Jr. appeals his

conviction by guilty plea for participation in a drug conspiracy and RICO

conspiracy, in violation of 21 U.S.C. § 846 and 18 U.S.C. § 1962(d), respectively.

We dismiss the appeal because Hernandez waived his right to appeal in the plea

agreement he entered on November 28, 2011.

      “[A] defendant’s waiver of his appellate rights 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 States v. Charles, 581

F.3d 927, 931 (9th Cir. 2009) (quoting United States v. Jeronimo, 398 F.3d 1149,

1154 (9th Cir. 2005)) (internal quotation marks omitted). Here, Hernandez signed

a plea agreement in which he waived his right to appeal his conviction unless he

based that appeal on a claim that his guilty plea was involuntary. Hernandez bases

this appeal on his counsel’s alleged conflict of interest when counsel moved to

withdraw Hernandez’s guilty plea.

      Granted, Hernandez makes occasional references not supported by evidence

to his counsel’s ineffective assistance of counsel “during the plea proceedings” or

“prior to a plea,” and he states once that his counsel’s “incompetence” caused “him

to enter an otherwise involuntary plea.” But his primary arguments on appeal urge


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this Court to find a Sixth Amendment violation due to counsel’s conflict during the

plea withdrawal stage. Because Hernandez waived “any right to appeal [his]

convictions” in the plea agreement (except for an appeal based on a claim that his

pleas were involuntary), and because his appeal is based on a claim of ineffective

assistance of counsel during post-plea-agreement proceedings, the language of his

appeal waiver encompasses the current appeal.

      The only question remaining is whether Hernandez’s appeal waiver was

“knowingly and voluntarily made.” Charles, 581 F.3d at 931 (citation and internal

quotation marks omitted). On this point, the record and the district court findings

as they currently stand are clear: Hernandez knowingly and voluntarily entered

into the plea agreement. Hernandez confirmed that he understood and agreed to

the appellate waiver and the overall plea agreement several times throughout the

record. We therefore reject any claim that Hernandez waived his right to appeal

involuntarily or without full knowledge. See United States v. Harris, 628 F.3d

1203, 1206 (9th Cir. 2011).

      We hold on the current record that the appeal waiver in the plea agreement is

enforceable, and Hernandez’s appeal falls within that waiver because it is not based

on a claim of involuntariness of his guilty plea. Our opinion does not foreclose




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Hernandez from seeking habeas relief under 28 U.S.C. § 2255. See United States

v. Rahman, 642 F.3d 1257, 1259–60 (9th Cir. 2011).

      DISMISSED.




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