Hernandez-Torres

MEMORANDUM ***

Pursuant to his guilty plea, appellant Jose Felix Hernandez-Torres was convicted of unlawful reentry into the United States under 8 U.S.C. § 1326 . Because Hernandez-Torres conceded in his plea agreement that he had a prior aggravated felony conviction, the district court sentenced him to 70 months imprisonment. On appeal, Hernandez-Torres argues that his sentence exceeded the maximum sentence permitted under § 1326. Because the facts are familiar to the parties, we recount them only as necessary to explain our decision.

1. Hernandez-Torres correctly points out that a defendant may appeal a sentence “imposed in excess of a maximum statutory penalty,” even if a defendant’s plea agreement waived his right to appeal. United States v. Ruiz, 241 F.3d 1157, 1164 (9th Cir.2001) (quoting United States v. Baramdyka, 95 F.3d 840, 843 (9th Cir. 1996)). Similarly, Hernandez-Torres also correctly points out that, under the terms of his plea agreement, he may appeal his sentence if it exceeded the applicable sentencing guideline range. Neither of these exceptions to the appeal waiver saves this appeal.

The record indicated that Hernandez-Torres had two prior convictions under…