FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

OSCAR JESUS CHAVEZ-DIAZ,

Defendant-Appellant.

No. 18-50391

D.C. No.

3:18-mj-20098-

KSC-AJB-1

OPINION

Appeal from the United States District Court

for the Southern District of California

Anthony J. Battaglia, District Judge, Presiding

Argued and Submitted December 9, 2019

Pasadena, California

Filed February 5, 2020

Before: Carlos T. Bea, Daniel P. Collins,

and Daniel A. Bress, Circuit Judges.

Opinion by Judge Bress
2 UNITED STATES V. CHAVEZ-DIAZ

SUMMARY*

Criminal Law

The panel reversed a district judge’s holding regarding 

appellate waiver, and remanded, in a case in which a 

criminal defendant—who pleaded guilty before a magistrate 

judge to one count of illegal entry into the United States—

attempted to raise on appeal to the district judge due process 

and equal protection challenges to the handling of his 

prosecution in the Southern District of California.

The panel held that the defendant waived his right to 

appeal his equal protection and due process claims by 

entering an unconditional guilty plea, and that the district 

court’s conclusion otherwise rested on a misinterpretation of 

Class v. United States , 138 S. Ct. 798 (2018). The panel 

held that the Menna-Blackledge exception—which allows 

for constitutionally-based appeals, despite an unconditional 

guilty plea, where the appeal, if successful, would mean that 

the government cannot prosecute the defendant at all—does 

not apply here. The panel explained that nothing in Class

undermines the general rule that a valid unconditional guilty 

plea prevents a defendant from raising on appeal claims of 

antecedent constitutional violations, which is true regardless 

of whether the challenge on appeal contradicts “factual 

guilt.”

The panel rejected the defendant’s argument that if his 

appeal is held to be waived, his guilty plea was not knowing 

or voluntary because his counsel stated at the plea colloquy 

* This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
UNITED STATES V. CHAVEZ-DIAZ 3

that the defendant “is not waiving his appellate rights.” The 

panel explained that the defendant’s counsel’s statement, 

which was made in the context of a group colloquy in which 

defendants were each separately stating whether they were 

accepting the government’s plea offer, necessarily pertained 

only to those rights that could be preserved despite pleading 

guilty unconditionally.

The panel remanded with instructions to dismiss the 

appeal.

COUNSEL

Kara Hartzler (argued), Federal Defenders of San Diego, San 

Diego, California, for Defendant-Appellant.

Benjamin Holley (argued) and Daniel E. Zipp, Assistant 

United States Attorneys; Helen H. Hong, Chief, Appellate 

Division; Robert S. Brewer, Jr., United States Attorney; 

United States Attorney’s Office, San Diego, California, for 

Plaintiff-Appellee.

OPINION

BRESS, Circuit Judge:

Oscar Chavez-Diaz pleaded guilty before a magistrate 

judge to one count of illegal entry into the United States, but 

then attempted to raise on appeal to the district judge certain 

due process and equal protection challenges to the handling 

of his prosecution in the Southern District of California. 

These constitutional challenges center on various practices 

employed in the Southern District to accommodate a recent 
4 UNITED STATES V. CHAVEZ-DIAZ

surge in illegal entry prosecutions. Because Chavez-Diaz 

did not enter a conditional plea expressly preserving his right 

to appeal particular issues, the threshold question in this case 

is whether Chavez-Diaz’s unconditional guilty plea waived 

his ability to raise the constitutional claims that he now 

advances. We hold that Chavez-Diaz waived his right to 

appeal these claims, and that the district court’s conclusion 

otherwise rested on a misinterpretation of Class v. United 

States, 138 S. Ct. 798 (2018). We therefore reverse and 

remand with instructions to dismiss the appeal.

I

Chavez-Diaz, a Mexican citizen, illegally entered the 

United States on July 10, 2018. He was charged with 

misdemeanor illegal entry in violation of 8 U.S.C. 

§ 1325(a)(2), which is punishable by up to six months in 

prison. In light of the Department of Justice’s increased 

prosecution of illegal entry offenses and the Department’s 

offer of time-served sentences to many of those charged with 

simple misdemeanor illegal entry, the Southern District of 

California—which bears a disproportionate share of these 

prosecutions—instituted a separate court calendar and set of 

procedures for illegal entry cases. At the time of ChavezDiaz’s prosecution, these procedures were as follows. 

Typically on the next court day after their apprehension, 

§ 1325 defendants were given the opportunity to meet with 

a court-appointed lawyer, have an initial appearance before 

a magistrate judge, and plead guilty pursuant to a plea 

agreement in which the government agreed to recommend a 

time-served sentence (an option afforded to most 

defendants). This would all happen in the same day, and the 

defendant would subsequently be removed from the United 
UNITED STATES V. CHAVEZ-DIAZ 5

States.1 Defendants who did not plead guilty had their cases 

assigned to a district judge or magistrate judge for trial.

Chavez-Diaz appeared before a magistrate judge the day 

after Border Patrol detained him. The hearing involved 

numerous § 1325 defendants appearing together, a practice 

we have previously approved. See United States v. DiazRamirez, 646 F.3d 653, 656–58 (9th Cir. 2011). At the 

hearing, Chavez-Diaz’s attorney objected that “this entire 

system violates equal protection and due process.” This was 

in specific reference to the Southern District’s separate 

calendaring of § 1325 offenses, which Chavez-Diaz claimed 

reflected an improper classification based on alienage and 

ethnicity. Chavez-Diaz’s counsel also objected to other 

practices in the Southern District relating to § 1325 

defendants, specifically, that such defendants were shackled 

during proceedings, met with their attorneys in a converted 

garage while shackled in the presence of U.S. Marshals, and 

allegedly suffered delays in presentment before a magistrate 

judge due to their detention at Border Patrol stations. The 

magistrate judge overruled these various objections.

Chavez-Diaz then informed the magistrate judge that he 

wished to plead guilty. At the hearing, the government 

stated that it was offering all defendants except one a plea 

agreement by which each defendant waived his right to 

challenge or appeal his sentence or conviction (except for 

ineffective assistance of counsel), in return for the 

government recommending a time-served sentence. 

Chavez-Diaz pleaded guilty without accepting the plea 

agreement, and his counsel informed the magistrate judge 

1 The Southern District has since changed its practices and § 1325 

defendants must now wait four days after their initial appearances before 

pleading guilty.
6 UNITED STATES V. CHAVEZ-DIAZ

that “Mr. Chavez-Diaz is not waiving his appellate rights. 

He is not.” After conducting a standard plea colloquy, the 

magistrate judge found that Chavez-Diaz entered his plea 

knowingly and voluntarily. The government recommended 

a 15-day sentence; Chavez-Diaz argued for time served. The 

magistrate judge sentenced Chavez-Diaz to time served, 

which amounted to one night in custody.

Chavez-Diaz appealed under 18 U.S.C. § 3402, which 

allows appeals to the district court upon conviction by a 

magistrate judge. The basis for Chavez-Diaz’s appeal was 

the due process and equal protection challenges that the 

magistrate judge had rejected. The district court held that 

Chavez-Diaz “did not waive his constitutional challenge by 

his plea under Class v. United States, 138 S. Ct. 798 (2018), 

as he is not challenging his factual guilt but only the 

constitutionality of the proceedings.” The district court then 

rejected Chavez-Diaz’s constitutional arguments on the 

merits, holding, inter alia, that § 1325 defendants were not 

classified based upon their alienage but rather upon the 

charges against them, and that the Southern District’s 

calendaring system was a rational response to the flood of 

§ 1325 prosecutions. Chavez-Diaz appealed to this Court. 

In response, the government renewed its argument that 

Chavez-Diaz waived his right to appeal these issues as a 

result of his guilty plea.

II

A

The starting point for our analysis is the difference 

between conditional and unconditional guilty pleas. Under 

Federal Rule of Criminal Procedure 11(a)(2), “[w]ith the 

consent of the court and the government, a defendant may 

enter a conditional plea of guilty . . . reserving in writing the 
UNITED STATES V. CHAVEZ-DIAZ 7

right to have an appellate court review an adverse 

determination of a specified pretrial motion. A defendant 

who prevails on appeal may then withdraw the plea.” A 

defendant has no entitlement to a conditional guilty plea. As 

we have held, “[t]he language of Rule 11(a)(2) is entirely 

permissive and creates no enforceable right to enter a 

conditional plea,” requiring instead the consent of both the 

government and the court. In re Gallaher, 548 F.3d 713, 716 

(9th Cir. 2008) (quotations and alterations omitted). But 

when a defendant does plead guilty conditionally, the scope 

of the issues that may be appealed is relatively 

straightforward: it depends on what is stated in the plea 

agreement or other writing memorializing the conditional 

plea. See, e.g., United States v. Arzate-Nunez, 18 F.3d 730, 

737 (9th Cir. 1994); United States v. Echegoyen, 799 F.2d 

1271, 1275–76 (9th Cir. 1986).

As often happens, Chavez-Diaz pleaded guilty 

unconditionally, e.g., without a written plea agreement 

preserving identified issues for appeal. In that situation, and 

subject to a notable exception that we discuss below, a 

defendant’s ability to raise issues on appeal is severely 

constrained. As the Supreme Court held long ago,

When a criminal defendant has solemnly 

admitted in open court that he is in fact guilty 

of the offense with which he is charged, he 

may not thereafter raise independent claims 

relating to the deprivation of constitutional 

rights that occurred prior to the entry of the 

guilty plea. He may only attack the voluntary 

and intelligent character of the guilty plea 

. . . .
8 UNITED STATES V. CHAVEZ-DIAZ

Tollett v. Henderson, 411 U.S. 258, 267 (1973). As we have 

thus held, “it is well-settled that an unconditional guilty plea 

constitutes a waiver of the right to appeal all 

nonjurisdictional antecedent rulings and cures all antecedent 

constitutional defects.” United States v. Lopez-Armenta, 

400 F.3d 1173, 1175 (9th Cir. 2005); see also United States 

v. Brizan, 709 F.3d 864, 866–67 (9th Cir. 2013); United 

States v. Jackson, 697 F.3d 1141, 1144 (9th Cir. 2012); 

United States v. Bohn, 956 F.2d 208, 209 (9th Cir. 1992) (per 

curiam).

This principle of law inheres in the nature and function 

of the guilty plea itself, which “represents a break in the 

chain of events which has preceded it in the criminal 

process.” Tollett, 411 U.S. at 267. By pleading guilty, a 

defendant “‘foregoes not only a fair trial, but also other 

accompanying constitutional guarantees.’” Class, 138 S. Ct. 

at 805 (quoting United States v. Ruiz, 536 U.S. 622, 628–29 

(2002)). Allowing a defendant to plead guilty 

unconditionally, but nevertheless to raise on appeal the very 

constitutional challenges that a guilty plea is designed to 

relinquish, would give the defendant the benefits of a guilty 

plea without the attendant waiver of rights that a plea

necessarily entails. That is why the Supreme Court has 

explained that a valid guilty plea “renders irrelevant—and 

thereby prevents the defendant from appealing—the 

constitutionality of case-related government conduct that 

takes place before the plea is entered.” Id. at 805.

Consistent with the foregoing, we have routinely held 

that defendants who pleaded guilty unconditionally cannot 

raise on appeal various claims of antecedent legal error. See, 

e.g., Brizan, 709 F.3d at 866 (alleged deprivation of ability 

to raise Fifth Amendment self-incrimination defense); 

Jackson, 697 F.3d at 1144 (alleged Speedy Trial Act 
UNITED STATES V. CHAVEZ-DIAZ 9

violation); Lopez-Armenta, 400 F.3d at 1175 (alleged Fourth 

Amendment violation and subsequent denial of motion to 

suppress); Bohn, 956 F.2d at 209 (alleged Speedy Trial Act 

and right to counsel violations).

A defendant who pleads guilty unconditionally and then 

purports to raise on appeal a challenge cast in equal 

protection or due process terms meets the same result: “As a 

general rule, a guilty plea erases claims of constitutional 

violation arising before the plea.” United States v. Montilla, 

870 F.2d 549, 552 (9th Cir. 1989), amended 907 F.2d 115 

(9th Cir. 1990). In Montilla, we held that a defendant who 

pleaded guilty waived a due process claim based on alleged 

“outrageous government conduct” by undercover agents. Id.

at 551–53. In United States v. O’Donnell, 539 F.2d 1233, 

1236–37 (9th Cir. 1976), superseded by statute on other 

grounds as recognized in United States v. Smith, 60 F.3d 

595, 598 (9th Cir. 1995), we held that a defendant waived 

his due process challenge to a delay in prosecution by 

pleading guilty. And in Tollett, one of the Supreme Court’s 

landmark precedents in this area, the Court held that a 

defendant who pleaded guilty could not later raise an equal 

protection challenge to “the systematic exclusion of” 

African Americans as grand jurors. 411 U.S. at 259.

Under these cases, Chavez-Diaz through his guilty plea 

plainly waived his right to appeal his equal protection and 

due process claims. As explained above, Chavez-Diaz 

argues that the Southern District’s separate § 1325 calendar 

impermissibly classifies defendants based on alienage and 

creates a “‘separate but equal’ system . . . in our federal 

courthouses.” Appellant’s Opening Br. at 1. Chavez-Diaz 

also argues that the circumstances of his meeting with his 

attorney, his shackling, and delays in presentment to a 

magistrate judge violated due process. These alleged 
10 UNITED STATES V. CHAVEZ-DIAZ

constitutional violations “ar[ose] before” Chavez-Diaz 

entered his guilty plea, Montilla, 870 F.2d at 552, and 

Chavez-Diaz does not argue they rendered his plea 

unknowing or involuntary. Accordingly, these are 

challenges to “the constitutionality of case-related 

government conduct that takes place before the plea is 

entered.” Class, 138 S. Ct. at 805. Chavez-Diaz waived his 

ability to raise these claims by pleading guilty.2

B

Citing the Supreme Court’s decision in Class, 138 S. Ct. 

798, the district court held that Chavez-Diaz had not waived 

his right to bring his equal protection and due process 

challenges on appeal. We understand the district court to 

have relied upon the so-called Menna-Blackledge exception, 

see Menna v. New York, 423 U.S. 61 (1975) (per curiam); 

Blackledge v. Perry, 417 U.S. 21 (1974), on which Class is 

the Supreme Court’s latest word. We hold, however, that the 

Menna-Blackledge exception does not apply here, and that 

the district court’s interpretation of Class was mistaken.

The Menna-Blackledge exception allows for 

constitutionally-based appeals—despite an unconditional 

guilty plea—where the appeal, if successful, would mean 

that the government cannot prosecute the defendant at all. 

See Class, 138 S. Ct. at 803 (explaining that the MennaBlackledge exception “implicates ‘the very power of the 

2 This does not mean that the claims Chavez-Diaz seeks to assert are 

never susceptible to our review. Chavez-Diaz could have attempted to 

secure a conditional plea that allowed him to appeal these claims. There 

may be other mechanisms, including civil litigation, through which these 

claims could have been preserved and presented. What Chavez-Diaz 

could not do is plead guilty unconditionally and then try to raise claims 

that his guilty plea forecloses.
UNITED STATES V. CHAVEZ-DIAZ 11

State’ to prosecute the defendant”) (quoting Blackledge, 

417 U.S. at 30). These are what we have sometimes referred 

to as “jurisdictional claims,” in that they “challenge the right 

of the state to hale the defendant into court.” Montilla, 

870 F.2d at 552. The Menna-Blackledge exception therefore 

applies “where on the face of the record the court had no 

power to enter the conviction or impose the sentence.” 

United States v. Broce, 488 U.S. 563, 569 (1989); see also 

Montilla, 870 F.2d at 552 (Menna-Blackledge applies where 

“the judge could determine at the time of accepting the plea, 

from the face of the indictment or from the record, that the 

government lacked the power to bring the indictment”).

Thus, in Menna, the Supreme Court held that a defendant 

did not waive a double jeopardy challenge because such a 

claim, if successful, “precluded the State from haling [the 

defendant] into court on the charge to which he had pleaded 

guilty.” 423 U.S. at 62; see also id. at 63 n.2 (“[A] plea of 

guilty to a charge does not waive a claim that—judged on its 

face—the charge is one which the State may not 

constitutionally prosecute.”). Similarly, in Blackledge, the 

Supreme Court held that a guilty plea did not waive the right 

to challenge a conviction on grounds of vindictive 

prosecution, because such a claim protects the right “not to 

be haled into court at all.” 417 U.S. at 30 (emphasis added); 

see also Broce, 488 U.S. at 575 (“In Blackledge, the 

concessions implicit in the defendant’s guilty plea were 

simply irrelevant, because the constitutional infirmity in the 

proceedings lay in the State’s power to bring any indictment 

at all.”).

Recently, the Supreme Court applied Menna-Blackledge

in the context of a challenge to the constitutionality of a 

statute of conviction. In Class, the defendant pleaded guilty 

to a firearms offense under 40 U.S.C. § 5104(e)(1), and 
12 UNITED STATES V. CHAVEZ-DIAZ

entered a written plea agreement that did not expressly 

preserve his ability to appeal whether that statute was 

unconstitutional because it allegedly violated the Second 

Amendment and was unconstitutionally vague. 138 S. Ct. at 

802. Class nevertheless tried to appeal on those grounds, 

and the question before the Court was whether he had the 

ability to do so notwithstanding his guilty plea. Id. at 801–

02. The Supreme Court held that Class’ claims fell within 

the Menna-Blackledge exception because “[t]hey challenge 

the Government’s power to criminalize Class’ (admitted) 

conduct,” and “thereby call into question the Government’s 

power to constitutionally prosecute him.” Id. at 805 

(quotations omitted).

As the foregoing description of Menna, Blackledge, and 

Class demonstrates, Chavez-Diaz’s claims do not fall within 

the narrow Menna-Blackledge exception. None of those 

claims “would extinguish the government’s power to 

constitutionally prosecute the defendant if the claim[s] were 

successful.” Class, 138 S. Ct. at 806. Unlike the defendant 

in Class, Chavez-Diaz does not argue that Congress lacked 

the power to criminalize illegal entry into the United States 

or that the government could not prosecute him for such a 

violation. Indeed, Chavez-Diaz concedes that Congress has 

“broad plenary power to draft laws (such as § 1325),” and he 

does not “challenge the executive’s right to exercise 

prosecutorial discretion in a manner it sees fit.” Appellant’s 

Opening Br. 39–40. At oral argument, moreover, ChavezDiaz conceded, as he understandably must, that if his claims 

were successful, the government could still retry him. That 

inevitable concession necessarily removes Chavez-Diaz 

from the limited ambit of the Menna-Blackledge exception, 

because his challenges do not “amount[] to a claim that ‘the 

State may not convict’ him.” Class, 138 S. Ct. at 804 

(quoting Menna, 423 U.S. at 63 n.2).
UNITED STATES V. CHAVEZ-DIAZ 13

The district court held otherwise on the theory that 

Chavez-Diaz “is not challenging his factual guilt but only the 

constitutionality of the proceedings.” That is not a correct 

interpretation of Class or the Menna-Blackledge exception. 

It is true that Class reiterated that “a valid guilty plea 

relinquishes any claim that would contradict the ‘admissions 

necessarily made upon entry of a voluntary plea of guilty.’” 

138 S. Ct. at 805 (quoting Broce, 488 U.S. at 573–74). Such 

a claim raised on appeal—which in the district court’s 

typology challenges “factual guilt”—necessarily fails to 

meet the Menna-Blackledge exception. See id.; Broce, 

488 U.S. at 570–71, 574–75.

But the converse is not true: that simply because a claim 

on appeal does not challenge factual guilt (or contradict it), 

that the claim necessarily qualifies for the MennaBlackledge exception. Nothing in Class undermines the 

more general rule, which Class reiterated, that “[a] valid 

guilty plea also renders irrelevant—and thereby prevents the 

defendant from appealing—the constitutionality of caserelated government conduct that takes place before the plea 

is entered.” Class, 138 S. Ct. at 805. That is true regardless 

of whether the challenge on appeal contradicts “factual 

guilt” or not. See id. A Fourth Amendment claim, for 

example, is a constitutional challenge that often “has no

bearing on guilt.” Linkletter v. Walker, 381 U.S. 618, 638 

(1965). The same is true of claims of allegedly 

unconstitutional delays in prosecution, see O’Donnell, 

539 F.2d at 1236–37, or impermissible racial discrimination 

in the grand jury selection process, see Tollett, 411 U.S. at 

259. But none of these claims can be raised on appeal 

following an unconditional guilty plea. See Class, 138 S. Ct. 

at 805–06; Tollett, 411 U.S. at 259; Lopez-Armenta, 

400 F.3d at 1175; O’Donnell, 539 F.2d at 1236–37. In other 

words, in the face of an unconditional guilty plea, that a 
14 UNITED STATES V. CHAVEZ-DIAZ

claim on appeal challenges or contradicts the defendant’s 

“factual guilt” is sufficient to find waiver. See Class, 138 S. 

Ct. at 805; Broce, 488 U.S. at 575–76. But the absence of a 

challenge to “factual guilt” does not mean the MennaBlackledge exception thereby applies.

This is apparent from Class’ own discussion of why the 

Menna-Blackledge exception applied to Class. After 

concluding that Class’ constitutional challenge to his statute 

of conviction met the exception, see 138 S. Ct. at 803–05, 

Class then proceeded to address various reasons why the 

exception might not apply, one of which is if the challenge 

“in any way den[ies] that [Class] engaged in the conduct to 

which he admitted.” Id. at 805–06. The Court held that 

Class’ challenges did not contradict the admissions made in 

his guilty plea, and so this was not a reason to deny 

application of Menna-Blackledge to Class. Id. But as the 

Supreme Court’s own analysis confirmed, that did not then 

mean the Menna-Blackledge exception automatically 

applied. Such a holding would have obviated the need for 

the Supreme Court’s extensive discussion of why Class’ 

particular challenge affirmatively met the exception. See id.

at 803–06.

These same points show the error in the district court’s 

determination that Chavez-Diaz could proceed with an 

appeal because he was challenging “only the 

constitutionality of the proceedings.” To the extent the 

district court meant to suggest that Chavez-Diaz is 

challenging the government’s power to prosecute him at 

all—and that he thereby falls within the limited confines of 

the Menna-Blackledge exception—this fails for the reasons 

explained above. And to the extent the district court meant 

that Chavez-Diaz may appeal because he raises 

constitutional challenges independent of his factual guilt, 
UNITED STATES V. CHAVEZ-DIAZ 15

this too fails. Once again, as described above, various types 

of challenges fall outside the Menna-Blackledge exception, 

including those of a constitutional nature. See Class, 138 S. 

Ct. at 805 (“[A] guilty plea does implicitly waive some 

claims, including some constitutional claims.”). The 

necessary reason is that many constitutional claims, which 

challenge the constitutionality of the proceedings in a broad 

sense, nonetheless do not “implicate[] the very power of the 

State to prosecute the defendant.” Id. at 803 (quotations 

omitted). Under Supreme Court precedent, that is the proper 

demarcation of the Menna-Blackledge exception to the 

general rule that a defendant who has entered a valid 

unconditional guilty plea cannot raise on appeal claims for 

antecedent constitutional violations.

C

Chavez-Diaz argues finally that if his appeal is held to 

be waived, his guilty plea was not knowing or voluntary 

because his counsel stated at the plea colloquy that “Mr. 

Chavez-Diaz is not waiving his appellate rights. He is not.” 

This argument fails. Counsel’s statement was made in the 

context of a group plea colloquy in which defendants were 

each separately stating whether they were accepting the 

government’s plea offer; Chavez-Diaz’s counsel indicated 

he was not. But counsel’s statement that “Mr. Chavez-Diaz 

is not waiving his appellate rights” necessarily pertained 

only to those rights that could be preserved despite pleading 

unconditionally. The statement did not reference ChavezDiaz’s equal protection and due process claims, and ChavezDiaz points to nothing in the record indicating he was told 

that he could appeal his conviction on those grounds.

The Supreme Court’s “decisions have not suggested that 

conscious waiver is necessary with respect to each potential 

defense relinquished by a plea of guilty,” and 
16 UNITED STATES V. CHAVEZ-DIAZ

“[r]elinquishment derives not from any inquiry into a 

defendant’s subjective understanding of the range of 

potential defenses.” Broce, 488 U.S. at 573–74. Under the 

circumstances, there is thus no basis to conclude that 

Chavez-Diaz’s plea was unknowing or involuntary.

* * *

We hold that Chavez-Diaz waived his right to appeal his 

equal protection and due process claims by entering an 

unconditional guilty plea. We therefore reverse the district 

court’s holding to the contrary and remand with instructions 

to dismiss the appeal.

REVERSED and REMANDED.