NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS SEP 24 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-55713

Plaintiff-Appellee, D.C. Nos. 3:16-cv-01455-GPC 3:12-cr-00236-GPC-12 v.

JULIO SOLORZANO, AKA Mowgli, MEMORANDUM*

Defendant-Appellant.

UNITED STATES OF AMERICA, No. 17-55725

Plaintiff-Appellee, D.C. Nos. 3:16-cv-01410-GPC v. 3:12-cr-00236-GPC-16

JOSE CORNEJO, AKA Rabbit,

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California Gonzalo P. Curiel, District Judge, Presiding

Argued and Submitted May 15, 2019 Pasadena, California

Before: WARDLAW and HURWITZ, Circuit Judges, and KORMAN,** District

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Judge.

Julio Solorzano and Jose Cornejo were charged with RICO conspiracy, in

violation of 18 U.S.C. § 1962(d), violent crimes in aid of racketeering (“VIAR”), in

violation of 18 U.S.C. § 1959(a), and discharging a firearm during a crime of

violence, in violation 18 U.S.C. § 924(c). The indictment alleged two predicate

crimes of violence for the § 924(c) charge: (1) the RICO conspiracy and (2) VICAR.

The jury found the defendants guilty of the RICO conspiracy and acquitted the

defendants of the VICAR charge, but nonetheless found they violated § 924(c),

returning a verdict finding them “guilty of discharge of a firearm . . . in relation to a

crime of violence, that is the violent crime in aid of racketeering.” The jury verdict

also found the defendants “guilty of brandishing a firearm . . . in relation to a crime

of violence, that is the RICO conspiracy” and “guilty of discharge of a firearm . . .

in relation to a crime of violence, that is the RICO conspiracy.”

The defendants subsequently filed motions under 28 U.S.C. § 2255

collaterally attacking their convictions, arguing that (1) the residual clause in

§ 924(c) was unconstitutional in light of Johnson v. United States, 135 S. Ct. 2551,

2563 (2015); (2) RICO conspiracy is not a crime of violence; and (3) “the violent

crime in aid of racketeering” jury finding could not serve as the predicate for their

** The Honorable Edward R. Korman, United States District Judge for the Eastern District of New York, sitting by designation.

2 § 924(c) convictions, given their acquittal on the VICAR charges. The district court

denied the motions, finding that the jury’s verdicts established that the defendants

had committed the “violent crime in aid of racketeering” despite the acquittals on

the VICAR charges, and that the § 924(c) convictions were therefore supported by

the § 924(c) “force clause.” The defendants timely appealed. We dismiss the

appeals.

1. After the jury returned its verdicts, the defendants entered into

sentencing agreements with the government that “waive[], to the full extent of the

law, any right to appeal or to collaterally attack the conviction and sentence.” The

defendants did not argue below that the waivers were not knowing and voluntary.

Nor do they now assert any breach of the sentencing agreement. Indeed, the district

court made clear that but for the sentencing agreement, it might well have imposed

longer sentences than it did. Rather, the defendants argue that because an appeal

waiver generally does not extend to an “illegal sentence,” United States v. Torres,

828 F.3d 1113, 1125 (9th Cir. 2016), they can collaterally attack their § 924(c)

convictions despite the sentencing agreement because if their convictions are

improper, the sentences imposed are illegal. We reject that argument.

2. “[T]he phrase ‘illegal sentence’ has a precise legal meaning. An illegal

sentence is one ‘not authorized by the judgment of conviction’ or ‘in excess of the

permissible statutory penalty for the crime.’” United States v. Vences, 169 F.3d 611,

3 613 (9th Cir. 1999) (quoting United States v. Fowler, 794 F.2d 1446, 1449 (9th Cir.

1986)). It also includes a sentence that “violates the Constitution.” United States v.

Bibler, 495 F.3d 621, 624 (9th Cir. 2007). The definition of “illegal sentence” is

imported from this Court’s case law interpreting Federal Rule of Criminal Procedure

35(a), which allows a court to “correct an illegal sentence at any time.” See Fowler,

794 F.2d at 1448-49. Rule 35, however, does not authorize challenges to an

underlying conviction. See United States v. Johnson, 988 F.2d 941, 943 (9th Cir.

1993).

The defendants do not contend that their sentences are unauthorized under the

judgment of conviction or that the Constitution prohibits the sentences imposed.

Rather, they simply contend that the evidence adduced at trial does not support their

§ 924(c) convictions in light of subsequent Supreme Court law, and that the resulting

sentences are therefore illegal. But, if the “illegal sentence” exception were so

broadly construed, it would vitiate virtually all appeal and collateral attack waivers,

as any defendant who signed the waiver would be able to argue that his sentence was

illegal because he was incorrectly convicted. Enforcing the defendants’ knowing

and voluntary waivers of their right to collaterally attack their convictions, we

DISMISS their appeals.

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