NOT FOR PUBLICATION FILED

DEC 21 2021

UNITED STATES COURT OF APPEALS

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-16769

Plaintiff-Appellee, D.C. Nos. 1:16-cv-00916-LJO 1:07-cr-00156-LJO-4 v.

KEITH ROSE, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of California Lawrence J. O'Neill, District Judge, Presiding

Submitted December 8, 2021** Pasadena, California

Before: BEA and LEE, Circuit Judges, and BENNETT,*** District Judge.

After participating in a series of armed robberies, Keith Rose pled guilty to

one count of conspiracy to commit Hobbs Act robbery in violation of 18 U.S.C.

§ 1951, and one count of brandishing a firearm during and in relation to a crime of

* 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). *** The Honorable Richard D. Bennett, United States District Judge for violence in violation of 18 U.S.C. § 924(c). As part of his plea agreement, Rose

agreed to an appellate waiver in which he relinquished “all Constitutional and

statutory rights . . . to attack collaterally . . . his plea, or his sentence, including . . .

filing a motion under 28 U.S.C. § 2255 . . . .” Rose was sentenced to 78 and

222-months imprisonment for his conspiracy and § 924(c) convictions,

respectively.

Years later, after the Supreme Court decided Johnson v. United States, 576

U.S. 591 (2015), Rose filed a motion under 28 U.S.C. § 2255 asking the district

court to vacate his § 924(c) conviction, arguing he did not commit a predicate

“crime of violence.” After the district court denied Rose’s § 2255 motion, we

granted his request for a Certificate of Appealability (COA) on the issue of

“whether [Rose’s] conviction and sentence for violating 18 U.S.C. § 924(c) must

be vacated because conspiracy to commit Hobbs Act robbery is not a qualifying

predicate crime of violence.” We dismiss Rose’s appeal as barred by his appellate

waiver.

We review de novo whether a defendant has waived his right to collaterally

attack his conviction and sentence. Id. A defendant’s appellate waiver 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

the District of Maryland, sitting by designation.

2 States v. Jeronimo, 398 F.3d 1149, 1153 (9th Cir. 2005), overruled on other

grounds by United States v. Jacobo Castillo, 496 F.3d 947, 957 (9th Cir. 2007) (en

banc).

The government argues that both requirements for enforceability are met

because the language of the appellate waiver clearly encompasses § 2255 motions

and the district court engaged with Rose in a Rule 11 colloquy to ensure he

knowingly and voluntarily waived his appellate rights. See Fed. R. Crim. P. 11(b).

We agree. Rose does not dispute that the requirements for enforcing the waiver are

met but argues that our circuit’s “illegal sentence” exception to enforcing

otherwise valid appellate waivers applies. See United States v. Torres, 828 F.3d

1113, 1124–25 (9th Cir. 2016). Rose claims that his § 924(c) conviction is illegal

and thus any sentence imposed for that conviction is also illegal.

Our circuit recently rejected an identical argument in United States v.

Goodall, 15 F.4th 987 (9th Cir. 2021). In Goodall, we declined to extend Torres’s

“illegal sentence” exception to “invalidate an appellate waiver if the conviction

was later found to be ‘illegal.’” Id. at 995. Here, as in Goodall, the government

agreed to drop numerous charges in exchange for Rose’s guilty plea. Id. at 997.

And, like the defendant in Goodall, Rose attacks his plea agreement, seeking

vacatur of his § 924(c) conviction based on a later change in the law. Id. at 996.

Rose “assume[d] the risk of later changes in the law” and “cannot enjoy the fruits

3 of his favorable plea agreement and then later claim the deal is rotten.” Id.

Therefore, we dismiss Rose’s appeal as barred by his appellate waiver. See

Jeronimo, 398 F.3d at 1152–53 (“We lack jurisdiction to entertain appeals where

there was a valid and enforceable waiver of the right to appeal.”).

Because the appellate waiver forecloses his appeal, we do not decide the

merits of Rose’s argument that he did not commit a predicate “crime of violence”

under United States v. Davis, 139 S. Ct. 2319 (2019), and Rosemond v. United

States, 572 U.S. 65 (2014).

We therefore DISMISS this appeal.

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