NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

SERGIO AVALOS, AKA Gilbert Avalos, 

AKA Happy, AKA Smiley, AKA Little 

Smiley, 

Defendant-Appellant.

No. 19-50061 

D.C. No. 

2:17-cr-00782-JFW-1 

MEMORANDUM*

Appeal from the United States District Court

for the Central District of California

John F. Walter, District Judge, Presiding

Argued and Submitted July 8, 2020

Pasadena, California

Before: BALDOCK,** BERZON, and COLLINS, Circuit Judges.

Sergio Avalos asks this Court to reverse the denial of his motion to withdraw 

his guilty plea to conspiracy to distribute and to possess with intent to distribute 

methamphetamine, in violation of 21 U.S.C. §§ 846, 841(a)(1), and to possession 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Bobby R. Baldock, United States Circuit Judge for the 

U.S. Court of Appeals for the Tenth Circuit, sitting by designation.

FILED

AUG 7 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 

924(c). Avalos argues the district court erred in finding that he entered the plea 

voluntarily and in finding that he failed to demonstrate a fair and just reason to 

withdraw his plea. We affirm. 

1. “We review de novo a district court’s finding as to whether a plea is 

knowing and voluntary” and “review for clear error any factual findings the district 

court made in deciding the motion.” United States v. Seng Chen Yong, 926 F.3d 

582, 589 (9th Cir. 2019) (citations omitted). “A plea is voluntary if it ‘represents a 

voluntary and intelligent choice among the alternative courses of action open to the 

defendant.’” Id. at 590 (citation omitted). Courts look to “the circumstances 

surrounding the signing and entry of the plea agreement to determine whether the 

defendant agreed to its terms knowingly and voluntarily.” United States v. Watson, 

582 F.3d 974, 986 (9th Cir. 2009) (citation omitted).

Avalos knowingly entered the plea agreement. As to the provision 

precluding him from requesting a sentence of less than 240 months, the plea 

agreement plainly stated that Avalos would be obligated “[n]ot [to] seek, argue for, 

or suggest in any way, either orally or in writing, a sentence of less than 240 

months’ imprisonment.” While Avalos avers that he was unaware at the time he 

signed the plea agreement of the limitation on his ability to request certain 

sentences, the declarations of his attorneys that they explained this specific 
3 

provision to him, Avalos’s signature and certification that he had read and 

understood the plea agreement and voluntarily agreed to its terms, and his 

attestations in open court to that effect, amply support the district court’s factual 

conclusion that he had been apprised of this provision in detail before he agreed to 

it. Avalos’s agreement to the 240-month provision was therefore knowing.

As to the mandatory minimum, the plea agreement expressly stated that 

Avalos faced a ten-year mandatory minimum sentence for the first charge to which 

he pleaded and a five-year mandatory minimum sentence “which must run 

consecutive to any other sentence of imprisonment” for the second. Although the 

plea agreement did not state the total mandatory minimum sentence of 15 years,

the sworn declarations of both of Avalos’s attorneys indicate they adequately 

explained this provision to Avalos prior to entering the plea agreement. It was not 

clear error for the district court to credit the attorneys’ testimony over Avalos’s, 

particularly given the corroborating evidence in the plain language of the 

agreement, and in Avalos’s written and oral declarations that he understood the 

mandatory minimum sentence under the plea agreement. See United States v. 

Nostratis, 321 F.3d 1206, 1211 (9th Cir. 2003).

Moreover, the record does not establish that Avalos’s plea was coerced. 

Avalos had ample time to review the agreement, including weeks within which to 

discuss the initial plea agreement with his counsel and several days within which to 
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review the revised version before the plea hearing. See Doe v. Woodford, 508 F.3d 

563, 570 (9th Cir. 2007). Furthermore, the court’s accurate statements at the 

hearing on February 12, 2018 regarding Avalos’s sentencing exposure, and 

tentative discussion of Avalos’s potential motions to suppress evidence, do not 

render the plea coerced.

2. This Court “will generally enforce the plain language of a plea agreement 

if it is clear and unambiguous on its face,” including waivers of the right to appeal. 

United 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). “[A] waiver of appellate rights ‘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.’” U.S. v. Lo, 839 F.3d 777, 783 (9th Cir. 2016)

(citations omitted). This Court has “consistently read general waivers of the right 

to appeal to cover all appeals, even an appeal from the denial of a motion to 

withdraw a guilty plea.” United States v. Rahman, 642 F.3d 1257, 1259 (9th Cir. 

2011).

Avalos’s plea agreement set forth the waiver of appellate rights in plain 

language, stating that “with the exception of an appeal based on a claim that 

defendant’s guilty pleas were involuntary, by pleading guilty defendant is waiving 

and giving up any right to appeal defendant’s convictions on the offenses to which 
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defendant is pleading guilty.” While the plea agreement’s waiver of appeal on a 

collateral attack contains an exception for a “post-conviction collateral attack

based on . . . an explicitly retroactive change in the applicable Sentencing 

Guidelines [or] sentencing statutes,” the waiver of appeal of a conviction contains 

no such exception. Because Avalos knowingly and voluntarily pleaded guilty, the 

waiver of appellate rights prevents this Court from reaching on direct appeal 

Avalos’s arguments that he had a fair and just reason to withdraw his plea, 

including his claim that he is entitled to be resentenced under the First Step Act,

Pub. L. No. 115-391, 132 Stat. 5194 (2018).

1

AFFIRMED.

1 We therefore express no opinion as to whether he could succeed on that claim if 

raised in a collateral proceeding.