FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 05-30401 Plaintiff-Appellee,

D.C. No.

v.  CR-04-02157-FVS

DOMINGO JACOBO CASTILLO,

OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the Eastern District of Washington

Fred L. Van Sickle, Chief Judge, Presiding

Submitted June 7, 2006*

Seattle, Washington

Filed September 22, 2006

Before: Robert R. Beezer, Richard C. Tallman, and

Jay S. Bybee, Circuit Judges.

Opinion by Judge Beezer;

Dissent by Judge Bybee

*The panel finds this case appropriate for submission without oral argument pursuant to Federal Rule of Appellate Procedure 34(a)(2). 

11905
COUNSEL

Dawn M. Reynolds, Dallas, Oregon, for the defendantappellant.

K. Jill Bolton, Assistant United States Attorney, Spokane,

Washington, for the plaintiff-appellee. 

11906 UNITED STATES v. CASTILLO
OPINION

BEEZER, Circuit Judge: 

Domingo Jacobo Castillo (“Jacobo”) pleaded guilty to one

count of being an illegal alien in possession of a firearm in

violation of 18 U.S.C. § 922(g)(5). He now appeals the denial

of his pre-plea motion to suppress and argues that the delay

between the discovery of the firearm and his indictment constitutes a violation of his Fifth Amendment due process rights.

We lack jurisdiction over this appeal because Jacobo entered

an unconditional guilty plea. 

We have previously held 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. Reyes-Platero,

224 F.3d 1112, 1115 (9th Cir. 2000) (“[W]e do not have jurisdiction over the merits of appeals based upon pre-waiver constitutional defects, and we must dismiss that portion of the

appeal.”); United States v. Floyd, 108 F.3d 202, 204 (9th Cir.

1997) (“Unless [appellant’s] plea conformed with [Rule

11(a)(2)’s] specific requirements, we have no jurisdiction to

hear her appeal.”); United States v. Carrasco, 786 F.2d 1452,

1453-54 (9th Cir. 1986) (“We do not have jurisdiction to

decide [appellant’s] appeal of the denial of the suppression

motion unless she entered a valid conditional plea.”).1

1A defendant may preserve material pretrial issues for appeal by entering a conditional plea pursuant to Federal Rule of Criminal Procedure

11(a)(2). The guilty plea is conditioned upon an appellate court’s affirmance of the trial court’s ruling on the pretrial motions. In the event that

the defendant prevails on appeal, the plea is withdrawn. This procedure

allows a defendant to preserve his right to appeal the pretrial rulings while

avoiding the expense of a trial where acquittal is unlikely in light of the

adverse rulings. 

UNITED STATES v. CASTILLO 11907
Jacobo did not enter a conditional plea pursuant to Fed. R.

Crim. P. 11(a)(2) but plead unconditionally. That should have

been the end of this appeal. 

[1] The government, however, does not argue that we lack

jurisdiction due to Jacobo’s unconditional plea. The government’s silence presents the undecided question whether the

government can waive the jurisdictional defect thereby allowing the court to decide the merits of the appeal. See, e.g.,

United States v. Schlesinger, 49 F.3d 483, 485 (9th Cir. 1994)

(“This court will not address waiver if not raised by the

opposing party.”); United States v. Lewis, 798 F.2d 1250 (9th

Cir. 1986) amending United States v. Lewis, 787 F.2d 1218

(9th Cir. 1986) (“Because the government failed to raise this

question in its brief or at oral argument, we decline to address

it.”). 

[2] We hold that the jurisdictional defect is not waivable

and a defendant’s failure to preserve his appellate rights by

entering a conditional plea pursuant to Rule 11(a)(2) deprives

us of the authority to consider the merits of a claim.2 As stated

by the Supreme Court in Tollett v. Henderson:

[A] guilty plea represents a break in the chain of

events which has preceded it in the criminal process.

When a criminal defendant has solemnly admitted in

open court that he is in fact guilty of the offense with

2This holding does not alter our conclusion in United States v. GarciaLopez, 309 F.3d 1121, 1122 (9th Cir. 2002), where we held that the government may expressly “waive the waiver” of a defendant’s right to appeal

application of the sentencing guidelines where he had waived appellate

rights in his plea agreement. In that case the waiver was a matter of contract between the government and the defendant and sentencing occurred

after the plea. Appealing a sentencing issue does not impact the finding

of guilt. See Reyes-Platero, 224 F.3d at 1115-16 (holding that the rule in

Tollett only applies to pre-plea motions and does not eliminate jurisdiction

for claims of constitutional error “occurring after the entry of a guilty

plea”). 

11908 UNITED STATES v. CASTILLO
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.

411 U.S. 258, 267 (1973). The Supreme Court clarified that

the holding in Tollett was not a simple issue of waiver of the

right to appeal but was based on the determination that:

[A] counseled plea of guilty is an admission of factual guilt so reliable that, where voluntary and intelligent, it quite validly removes the issue of factual

guilt from the case . . . [and] factual guilt is a sufficient basis for the State’s imposition of punishment.

A guilty plea, therefore, simply renders irrelevant

those constitutional violations not logically inconsistent with the valid establishment of factual guilt and

which do not stand in the way of conviction, if factual guilt is validly established.

Menna v. New York, 423 U.S. 61, 63 n.2 (1975). An unconditional guilty plea renders rulings on pretrial motions irrelevant

and deprives appellate courts of the ability to reassess those

rulings. See Lopez-Armenta, 400 F.3d at 1175 (“[A]n unconditional guilty plea . . . cures all antecedent constitutional

defects.”) (emphasis added). The government’s waiver cannot

alter the “break in the chain of events” and create jurisdiction.

See Torres v. Oakland Scavenger Co., 487 U.S. 312, 317 n.3

(1988) (“a litigant’s failure to clear a jurisdictional hurdle can

never be ‘harmless’ or waived by a court”); Gusman-Andrade

v. Gonzales, 407 F.3d 1073, 1077 (9th Cir. 2005) (holding

that jurisdiction cannot be created by the parties’ agreement

through consent or stipulation and the parties cannot “waive

its absence”). 

In United States v. Rogers, 387 F.3d 925 (7th Cir. 2004),

the Seventh Circuit considered the same issue and determined

that an unconditional plea created a non-waivable jurisdicUNITED STATES v. CASTILLO 11909
tional bar to appellate review. In Rogers, as in this case, the

government did present the waiver argument in its briefs and

addressed only the merits of the underlying constitutional

claim. Id. at 934. The court concluded that despite the government’s waiver of the jurisdictional argument, it had no jurisdiction to consider the merits of appellant’s claims. Id. (citing

cases). 

[3] Jacobo’s entry of an unconditional guilty plea deprives

us of jurisdiction to consider his pre-plea constitutional

claims.

DISMISSED. 

BYBEE, Circuit Judge, dissenting: 

I write separately because our precedents will not support

—and, indeed, they contradict—the majority’s holding. In

particular, the majority’s holding clearly conflicts with our

decision in United States v. Garcia-Lopez, 309 F.3d 1121,

1122 (9th Cir. 2002). I believe that we cannot dismiss this

case for want of jurisdiction without seeking en banc

approval. 

I agree that Jacobo relinquished his pretrial constitutional

appeals at sentencing. See Tollett v. Henderson, 411 U.S. 258

(1973). The question is: What are the consequences? Not

infrequently, a defendant who has waived his right to appeal

in a plea agreement will file an appeal anyway. Ordinarily, in

such cases, the government will advise us of the waiver, either

by motion or in its brief, and we will dismiss the appeal, often

in a memorandum disposition. But in this case, the government answered Jacobo’s contentions on the merits, never

arguing that Jacobo’s appeal was barred or moving to dismiss

his appeal. Nevertheless, the majority holds that Jacobo’s

waiver is a jurisdictional bar, and that we must dismiss the

11910 UNITED STATES v. CASTILLO
appeal, even though the government never raised the point. In

support of its holding the majority cites a number of cases in

which we dismissed the appeal. Maj. op. at 11907. But in

those cases, the government properly asserted the bar to

appeal. See United States v. Lopez-Armenta, 400 F.3d 1173,

1175 (9th Cir. 2005) (“The government moved to dismiss the

appeal” before a motions panel); United States v. ReyesPlatero, 224 F.3d 1112, 1114 (9th Cir. 2000) (“The government argues that Reyes-Platero waived these arguments by

unconditionally pleading guilty.”); United States v. Floyd, 108

F.3d 202, 203 (9th Cir. 1997) (“The government . . . moved

to dismiss the appeal for lack of jurisdiction because Floyd’s

plea was not a Rule 11(a)(2) conditional guilty plea.”); see

also United States v. Nunez, 223 F.3d 956, 958 (9th Cir. 2000)

(“[T]he government clearly preserved its defense by filing a

motion to dismiss Nunez’s appeal before filing its appellee’s

brief.”); United States v. Cortez, 973 F.2d 764, 766 (9th Cir.

1992) (“The United States argues that Cortez’ selective prosecution motion was waived both by Cortez’ failure to file the

claim before trial and his plea of guilty.”). Here, the government not only failed to file a motion to dismiss, but also never

argued for a waiver of appeal in its brief. When “the government fail[s] to raise this question in its brief or at oral argument, we decline to address it.” United States v. Lewis, 798

F.2d 1250 (9th Cir. 1986), amending United States v. Lewis,

787 F.2d 1318 (9th Cir. 1986). 

More importantly, we have previously held that “the government can waive the waiver” in cases where a defendant

appeals despite a guilty plea. United States v. Garcia-Lopez,

309 F.3d 1121 (9th Cir. 2002). In Garcia-Lopez, the government properly moved to dismiss the appeal, and then explicitly waived the appeals bar in subsequent briefing. We held

that “even if a defendant has waived his right to appeal in a

plea agreement, we may nevertheless hear the appeal when

the government has expressly waived its right to assert the

defendant’s waiver.” Id.; see also id. at 1123 (the “government ‘waived [its] waiver’ argument by failing to raise it.”)

UNITED STATES v. CASTILLO 11911
(quoting Fagan v. Washington, 942 F.2d 1155, 1157 (7th Cir.

1991) and citing United States v. Lewis, 798 F.2d 1250 (9th

Cir. 1986)) (alteration in original)). In that case, express

waiver was required because the government had preserved

its rights by filing a motion to dismiss the appeal. We reasoned that “[i]f the government can ‘waive waiver’ implicitly

by failing to assert it, certainly the government can do so

explicitly, as occurred here.” Id. (emphasis added). 

Here, however, no express waiver is necessary because the

government never asserted its right to rely on defendant’s

relinquishment of his appeal in the first place. Where the government has never asserted its rights, the issue is “whether the

government can waive the waiver. We [have] h[e]ld that it

can.” Id. at 1122. We rendered a similar decision in United

States v. Doe, 53 F.3d 1081 (9th Cir. 1995), holding that even

if the defendant had relinquished his appeal rights by failing

to appeal the imposition of supervised release until years after

his sentencing, the waiver would not bar appeal unless the

government so requested. “[Defendant’s] [w]aiver does not

divest the Court of jurisdiction it otherwise enjoys.” Id. at

1082. 

The majority distinguishes Garcia-Lopez on the grounds

that the defendant in that case sought to appeal a sentencing

determination that occurred after the plea, rather than the

issue of guilt itself. Maj. Op. at 11908 n.2. But GarciaLopez’s plea agreement expressly relinquished appeals for

sentencing and guilt, provided the sentence fell within the

guidelines. Garcia-Lopez, 309 F.3d at 1122 (quoting the plea

agreement’s provisions that “defendant waives, to the full

extent of the law, any right to appeal or to collaterally attack

the conviction and sentence”). Garcia-Lopez was sentenced

within the guidelines, but appealed nonetheless. He did not

allege any breach of the agreement, nor did he attack its validity. His appeal did not fall within the “narrow exception to

waiver of the right to appeal” we have recognized in cases

“where the sentence imposed is not in accordance with the

11912 UNITED STATES v. CASTILLO
negotiated agreement.” United States v. Bolinger, 940 F.2d

478, 480 (9th Cir. 1991) (internal quotation marks omitted).

Regardless of whether his claims arose from actions completed before or after the agreement, Garcia-Lopez expressly

and effectively bargained away his appeal rights, just as

Jacobo has, but was permitted to take them up again after the

government declined to enforce the bar. We cannot distinguish his waiver from Jacobo’s. 

In fairness to the majority, I recognize that our cases are not

entirely consistent and that there is language in our cases stating that “[w]e do not have jurisdiction to decide” post-plea

appeals. United States v. Carrasco, 786 F.2d 1452, 1454 (9th

Cir. 1986). A true jurisdictional bar, of course, would not be

waivable. Our cases have not always been careful to explain

whether the bar to post-plea appeal is a jurisdictional bar, a

waiver, or some other kind of defense to appeal. Compare,

e.g., Lopez-Armenta, 400 F.3d at 1177 (discussing the plea

bar as waiver); United States v. Anglin, 215 F.3d 1064, 1066

(9th Cir. 2000) (discussing the appeals bar as a waiver and

providing that “[t]he scope of a knowing and voluntary

waiver is demonstrated by the express language of the plea

agreement”); Bolinger, 940 F.2d at 480 (noting that “a negotiated plea of guilty” functions as “an express waiver of the

right to appeal”) with, e.g., Floyd, 108 F.3d at 204 (“Unless

Floyd’s plea conformed with [the Federal] Rule’s specific

requirements [for a conditional plea], we have no jurisdiction

to hear her appeal. Hence, we cannot reach the merits of her

conviction.”); Carrasco, 786 F.2d at 1453-54 (“We do not

have jurisdiction to decide Carrasco’s appeal . . . unless she

entered a valid conditional plea.”). We have sometimes muddled the categories within the same opinion. See ReyesPlatero, 224 F.3d at 1114 (“The government argues that

Reyes-Platero waived these arguments by unconditionally

pleading guilty. The implication of the government’s argument is that we do not have jurisdiction . . . .”). The confusion

UNITED STATES v. CASTILLO 11913
in our cases calls for rehearing en banc, not a simple vote by

our panel.1

Absent clarification from the court, sitting en banc, I

believe we are bound by Garcia-Lopez, and would hold that

the government has relinquished its objections to Jacobo’s

appeal. I would, therefore, reach the merits of the appeal. On

that score, I do not find Jacobo’s claims persuasive. He cannot

now appeal the admission of the firearms seized in a search

of his house because he stipulated, at pleading, that the search

was conducted pursuant to probable cause. See United States

v. Hernandez-Hernandez, 431 F.3d 1212, 1219 (9th Cir.

2005); see also United States v. Ferreboeuf, 632 F.2d 832,

836 (9th Cir. 1980) (“Unless a criminal defendant indicates

objection at the time the stipulation is made, he or she is ordinarily bound by such stipulation.”). 

Because Jacobo did not object to preindictment delay at

trial, we may only review this claim for plain error. Estrella

v. United States, 429 F.2d 397, 399 (9th Cir. 1970). There is

none here because Jacobo fails to even allege, much less

prove, “actual, non-speculative prejudice from the delay.”

United States v. Huntley, 976 F.2d 1287, 1290 (9th Cir. 1992).

I would affirm the judgment of the district court. 

1The confusion in our own cases is not aided by the Supreme Court’s

decisions in Menna v. New York, 423 U.S. 61 (1975), or Tollett v. Henderson, 411 U.S. 258 (1973). See Maj. Op. at 11908-09. At most, those cases

suggest that “waiver” is not the appropriate term to describe when a defendant bargains away his appeal rights. But nothing in those cases suggests

that relinquishment is jurisdictional. See Menna, 423 U.S. at 62 n.2; Tollett, 411 U.S. at 266-67. 

11914 UNITED STATES v. CASTILLO