United States v. Ugo Chijioke ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 13 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-50188
Plaintiff-Appellee, D.C. No. 2:17-cr-00475-MWF-1
v.
MEMORANDUM*
UGO CHIJIOKE, AKA Eugene Akabueze,
AKA Ugo Okorie Chijioke, AKA Olde
English, AKA Paulims Ezengo, AKA
Kenneth Mails, AKA Kenneth E. Nails,
AKA Kenneth Everett Nails, AKA
Ugochukwu John Okore,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Michael W. Fitzgerald, District Judge, Presiding
Submitted May 6, 2020**
Before: BERZON, N.R. SMITH, and MILLER, Circuit Judges.
Ugo Chijioke appeals from the district court’s amended judgment, which
was entered upon remand from this court. We have jurisdiction under 28 U.S.C.
*
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).
§ 1291, and we dismiss in part, and remand in part.
Chijioke contends, and the government concedes, that the district court erred
by imposing standard conditions of supervised release five, six, and fourteen,
which are unconstitutionally vague. See United States v. Evans, 883 F.3d 1154,
1162-64 (9th Cir.), cert. denied, 139 S. Ct. 133 (2018). It appears that the district
court inadvertently failed to amend those conditions as directed in our prior
remand. See United States v. Chijioke, 749 Fed. App’x 564 (9th Cir. 2019).
Accordingly, we remand for the district court to enter a second amended judgment
modifying conditions five, six, and fourteen consistent with Evans.
Chijioke also asserts that the district court violated his Sixth Amendment
right to be present at sentencing by resentencing him in absentia. We agree with
the government that this claim is barred by the appeal waiver in Chijioke’s plea
agreement. Although an appellate waiver is not enforceable if a sentence is illegal,
see United States v. Ornelas, 828 F.3d 1018, 1020-21 (9th Cir. 2016), Chijioke’s
sentence is not unlawful because he entered into a stipulation agreeing that the
judgment could be modified without a hearing. See Fed. R. Crim. P. 32.1(c)(2)
(supervised release conditions can be modified without a hearing if the defendant
waives the hearing or “the relief sought is favorable” to the defendant and does not
extend the term of supervised release). Accordingly, we dismiss this portion of
Chijioke’s appeal pursuant to the valid appeal waiver. See Ornelas, 828 F.3d at
2 19-50188
1021-23 (invoking appeal waiver and dismissing because in absentia sentencing
hearing did not violate defendant’s constitutional rights).
DISMISSED in part; REMANDED with instructions.
3 19-50188