United States v. Zalathiel Aguila ( 2020 )

FILED
NOT FOR PUBLICATION
DEC 16 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-10390
Plaintiff-Appellee, D.C. No.
2:16-cr-00046-GEB-2
v.
ZALATHIEL AGUILA, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, Jr., District Judge, Presiding
Submitted December 11, 2020**
San Francisco, California
Before: W. FLETCHER, IKUTA, and VANDYKE, Circuit Judges.
Aguila appeals from an amended judgment ordering him to pay restitution to
the victims of his offense. We have jurisdiction under 28 U.S.C. § 1291, and we
*
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).
dismiss this appeal because Aguila validly waived his right to appeal and none of
the exceptions to such waivers is applicable.
“As a general rule, a waiver of 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. Lo, 839 F.3d
777, 783 (9th Cir. 2016) (cleaned up). Aguila does not argue that either of these
requirements is lacking here.
We have identified certain “exceptions to the rule that a defendant can waive
the right to appeal various claims,” but the only exception argued here is that “a
waiver of the right to appeal does not bar a defendant from challenging an illegal
sentence.” Id. at 785 (cleaned up). “[T]he phrase ‘illegal sentence’ has a precise
legal meaning.” United States v. Vences, 169 F.3d 611, 613 (9th Cir. 1999). “An
award of restitution is illegal only if it is not authorized for the offense at issue or is
in excess of the amount allowed by statute.” Lo, 839 F.3d at 787–88 (emphasis
added).
Aguila does not claim that the added restitution amount was “not authorized
by the judgment of conviction” or was “in excess of the permissible statutory
penalty for the crime.” Vences, 169 F.3d at 613 (quoting United States v. Fowler,
794 F.2d 1446, 1449 (9th Cir. 1986)); see also 18 U.S.C. § 3664(f)(1)(A) (“[T]he
2
court shall order restitution to each victim in the full amount of each victim’s
losses . . . .”). Aguila argues only that the district court exceeded its statutory
authority when it amended the restitution order after the sentencing hearing.
However, even if the court had exceeded its authority,1 the amended restitution
order would not constitute an “illegal sentence” that would permit an exception to
Aguila’s appeal waiver. See Vences, 169 F.3d at 613.
DISMISSED.
1
But see Dolan v. United States, 560 U.S. 605, 618–20 (2010) (rejecting the
view that an entry of judgment would immediately deprive the trial judge of the
authority later to order restitution under § 3664(d)(5) “in the absence of a statute
specifically providing otherwise”).
3