United States of America v. RICHARD SAPIEN, AKA Richard Casarez Sapien, AKA Richard Casarez Sapien, Jr., AKA…

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RICHARD SAPIEN, AKA Richard Casarez
Sapien, AKA Richard Casarez Sapien, Jr.,
AKA Ricky Sapien,
Defendant-Appellant.
No. 18-10112
D.C. No. 1:15-cr-00069-DAD-
BAM-1
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Dale A. Drozd, District Judge, Presiding
Submitted May 21, 2019**
Before: THOMAS, Chief Judge, FRIEDLAND and BENNETT, Circuit Judges.
Richard Sapien appeals from the district court’s judgment and challenges the
100-month sentence imposed following his guilty-plea conviction for being a felon
in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). We dismiss.
* 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).
FILED
MAY 28 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 18-10112
Sapien argues that the district court erred by enhancing his base offense
level under U.S.S.G. § 2K2.1(a)(2), contending that his prior convictions for
assault with a deadly weapon under California Penal Code § 245(a)(1) are not
crimes of violence. The government contends that this appeal is barred by a valid
appeal waiver. We review the enforceability of an appeal waiver de novo. See
United States v. Watson, 582 F.3d 974, 981 (9th Cir. 2009).
The language of the appeal waiver in Sapien’s plea agreement
unambiguously encompasses the claims he seeks to raise. See id. at 986. Contrary
to his contention, Sapien’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.”); see also United
States v. Vasquez-Gonzalez, 901 F.3d 1060, 1068 (9th Cir. 2018) (a conviction
under California Penal Code § 245(a)(1) is categorically a crime of violence).
Moreover, the record does not support Sapien’s claim that the district court
provided an unqualified advisement at the sentencing hearing that he had a right to
appeal. See United States v. Arias-Espinosa, 704 F.3d 616, 619-20 (9th Cir. 2012).
Finally, we decline to reach on direct appeal Sapien’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 waiver. See id. at 1260.
DISMISSED.

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