In the

United States Court of Appeals

For the Seventh Circuit

No. 11-2412

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

HIPOLITO ALCALA,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 08-CR-00190—Rudolph T. Randa, Judge.

ARGUED APRIL 4, 2012—DECIDED MAY 3, 2012

Before EASTERBROOK, Chief Judge, and FLAUM and

MANION, Circuit Judges.

FLAUM, Circuit Judge. Hipolito Alcala pled guilty to a

single count of unlawfully using a communication

facility to further a drug trafficking offense. After the

district court accepted his plea, but before sentencing,

he moved to withdraw his plea. Despite the fact that, in

his plea agreement, he waived his right to appeal his

conviction, he now attempts to appeal the district court’s
2 No. 11-2412

denial of his motion to withdraw his plea. He argues

that he did not knowingly and voluntarily waive his

right to appeal, stressing his background as a native

Spanish-speaker with an eighth grade education. We

dismiss the appeal.

I. Background

Hipolito Alcala (“Alcala”) was charged with conspiracy to possess with the intent to distribute five

kilograms or more of cocaine, 21 U.S.C. § 841(a)(1); fifty

grams or more of cocaine base, 21 U.S.C. § 841(b)(1)(A);

and one kilogram or more of heroin, 21 U.S.C. § 846.

Initially, Alcala pled not guilty, and a two-day jury trial

commenced on August 16 and 17, 2010. After several

Government witnesses testified against him, Alcala

informed the court that he intended to plead guilty. He

and the Government agreed that he would plead to a

reduced charge of unlawful use of a communication

facility to further a drug trafficking offense, 21 U.S.C.

§§ 841(a)(1), 843(b).

On August 17, 2010, the Government filed an Information charging Alcala with the reduced charge. Alcala

pled guilty to this offense, signing a Waiver of Indictment. His plea agreement contained the following provision:

Based on the government’s concessions in this agreement, the defendant knowingly and voluntarily

waives his right to appeal his sentence in this case

and further waives his right to challenge his convic-
No. 11-2412 3

tion or sentence in any post-conviction proceeding,

including but not limited to a motion pursuant to

28 U.S.C. § 2255. This waiver does not extend to an

appeal or post-conviction motion based on (1) any

punishment in excess of the statutory maximum,

(2) the sentencing court’s reliance on any constitutionally impermissible factor, and (3) ineffective

assistance of counsel.

The same day, Alcala appeared before the district

court, which conducted his plea colloquy. During the

plea colloquy, the district court asked Alcala about

the extent of his education, whether he had ever

been declared mentally incompetent or institutionalized,

whether he was undergoing psychological or psychiatric

care at the time, and whether he was using any medications or any type of drug that would affect his comprehension of the proceedings. Alcala answered that he

had completed “eight years” in school and “no” to the

other questions. The district court asked him whether

he had any questions either for counsel or for the court

about the pleading process or the plea itself, and Alcala

answered negatively. The district court also asked him

whether he was satisfied with his counsel’s representation

thus far, and Alcala responded affirmatively. Finally,

the district court stated:

How do you plead to the charge? That is, Count 1

of this Information? Guilty or not guilty? But, before

you answer, there is one other thing that’s been

waived here that I haven’t discussed, and that’s Paragraph 32. It says here that you knowingly and volun-
4 No. 11-2412

tarily waive your right to appeal the sentence and

your right to challenge this conviction in any

post-conviction proceeding, including but not

limited to a motion pursuant to 2255 of Section 28 of

the United States Code. But that this waiver does not

extend to an appeal or post-conviction motion

based on any punishment in excess of the statutory

maximum, or if I rely upon any factor that’s not

permitted by the Constitution. Or, if in any way,

Mr. Erickson is ineffective in representing you. Do

you understand that that’s waived when you plead

guilty, Mr. Alcala?

Alcala answered “Yes.” The district court, therefore,

accepted his plea.

On August 24, 2010, Alcala filed a letter with the

district court, ostensibly without the assistance of

counsel, requesting to withdraw his guilty plea and be

tried by jury. His attorney moved to withdraw as

counsel, at which time the district court appointed

new counsel.

On December 2, 2010, Alcala filed a motion to

withdraw his plea with supporting affidavit. The

district court denied his motion and imposed a 34-month

sentence, which amounted to time served, as well as

one year of supervised release and a $100 special assessment.

Alcala appeals, contending that he did not knowingly

and voluntarily waive his right to appeal and that

the district court erred in denying his motion to

withdraw his plea. Because we find that Alcala’s waiver
No. 11-2412 5

was valid and encompassed his right to appeal the

district court’s denial of his motion to withdraw

his plea, our review is foreclosed, and we dismiss

this appeal.

II. Discussion

We review a district court’s denial of a motion to withdraw a plea for abuse of discretion. United States v. Bryant,

557 F.3d 489, 495 (7th Cir. 2009). When, however, the

plea agreement contains a provision in which the defendant waives his right to appeal, our review is foreclosed

if (1) his attempt to withdraw his plea falls within the

scope of the waiver, see United States v. Shah, 665 F.3d

827, 837 (7th Cir. 2011) (“[W]e enforce a waiver only if

the disputed appeal comes within the ambit of the

waiver.”), and (2) his waiver was valid, see United States v.

Cole, 569 F.3d 774, 776 (7th Cir. 2009) (“As a general

rule, a defendant may waive the right to appeal his conviction and sentence, and appeal waivers are generally

valid if they are made knowingly and voluntarily.”)

(internal citations omitted); see also United States v.

McGraw, 571 F.3d 624, 630 (7th Cir. 2009) (“A knowing

and voluntary appeal waiver precludes appellate review.”).

We review de novo whether a waiver is enforceable.

See United States v. Quintero, 618 F.3d 746, 750 (7th

Cir. 2010). In doing so, we interpret the terms of a plea

agreement “according to the parties’ reasonable expectations and construe any ambiguities in the light most

favorable to the defendant.” Shah, 665 F.3d at 837 (citing
6 No. 11-2412

Quintero, 618 F.3d at 750). Additionally, we consider the

plea colloquy, evaluating whether the district court

“properly informed the defendant that the waiver may

bar the right to appeal.” Id. (citing Quintero, 618 F.3d

at 750).

A. Alcala’s Motion to Withdraw His Plea Agreement

Falls Within the Scope of His Appellate Waiver

This Court has repeatedly recognized that a defendant

may waive his right to appeal his conviction and sentence. See, e.g., Cole, 569 F.3d at 776. We have not yet

considered, however, whether an appeal of a denial of

a motion to withdraw a plea constitutes an appeal of the

conviction. That is, we have not addressed whether a

defendant’s waiver of his appellate rights applies to

a motion to withdraw a plea.

The Sixth Circuit recently confronted this question

in United States v. Toth, 668 F.3d 374 (6th Cir. 2012), and

held that such waiver, if valid, precludes a defendant’s

right to appeal a denial of his motion to withdraw his

plea. In Toth, the defendant signed a plea agreement

with the Government in which he waived his right to

appeal. Id. at 374. The terms of the agreement were specified to the district court during the defendant’s plea

colloquy, including the defendant’s knowing, voluntary

relinquishment of his appellate rights. Id. at 376-77. The

district court, in turn, instructed the defendant that if

he accepted the deal, he would not be able to withdraw

his guilty plea “absent a fair and just reason.” Id. at 377.
No. 11-2412 7

See United States v. Hernandez, 242 F.3d 110, 113 (2d Cir. 2001) 1

(per curiam) (identifying an appeal of a denial of a motion to

(continued...)

The defendant indicated that he understood and

accepted the deal. Id.

Some two-and-a-half months later, the defendant informed the court that he had been “tricked” by counsel

into pleading guilty in spite of the truth. Id. The

district court conducted an evidentiary hearing, concluded that the defendant had not demonstrated a

“fair and just reason for requesting the withdrawal,” see

FED. R. CRIM. P. 11(d)(2)(B), and denied his motion to

withdraw his plea. Toth, 668 F.3d at 377. The defendant

appealed, and the Sixth Circuit, holding that the defendant’s waiver of appeal was valid and that his motion to

withdraw his plea fell within the ambit of the waiver,

dismissed his appeal. Id. at 377-79.

In Toth, the Sixth Circuit echoed the conclusion

reached by every circuit that has considered this question: the majority of circuits agree that appealing a

denial of a motion to withdraw a plea “is an attempt to

contest a conviction on appeal.” Id. at 378 (quoting

United States v. Elliott, 264 F.3d 1171, 1174 (10th Cir.

2001)) (internal quotation marks omitted). In addition

to the Sixth Circuit, the Second, Third, Fourth, Eighth,

Ninth, and Tenth Circuits have each held that when a

defendant waives his right to appeal in a plea, he

also waives his right to appeal a denial of his motion

to withdraw that plea.1
8 No. 11-2412

(...continued) 1

withdraw a plea as “an issue related to the merits of the underlying conviction”); United States v. Daniels, 278 Fed. Appx. 161,

162 (3d Cir. 2008) (“[A]n appeal of a denial of a motion to

withdraw a guilty plea constitutes a challenge to a defendant’s

conviction that falls within the plain language of an appellate

waiver provision.”); United States v. Garner, 283 Fed. Appx. 176,

178 (4th Cir. 2008) (“In challenging the district court’s denial

of his motion to withdraw his guilty plea, [the defendant]

is contesting his conviction.”); United States v. Gray, 528 F.3d

1099, 1102 (8th Cir. 2008) (holding that a knowing, voluntary

waiver of a right to appeal issues relating to the “negotiation,

taking[,] or acceptance of [a] guilty plea or the factual basis

for the plea” precludes appellate review of a denial to

withdraw the plea); United States v. Michlin, 34 F.3d 896, 898,

901 (9th Cir. 1994) (holding that a defendant’s valid waiver

of his appellate rights forecloses his right to appeal a denial of

his motion to withdraw his plea); Elliott, 264 F.3d at 1174.

We agree with our sister circuits that a defendant

challenges his conviction when he challenges the

district court’s denial of his motion to withdraw a plea.

Accordingly, the only question before us is whether

Alcala’s signing of his plea agreement and waiver of

his rights was knowing and voluntary.

B. Alcala’s Waiver Was Valid

Alcala argues that as a native Spanish-speaker with

an eighth grade education, he could not understand

the appellate waiver provision. He also faults his plea

colloquy proceedings. He claims, first, that the district
No. 11-2412 9

court failed to ask him about each trial right individually—“the right . . . to confront and cross-examine

adverse witnesses, to be protected from compelled

self-incrimination, to testify and present evidence, and

to compel the attendance of witnesses.” Second, he maintains that court prompted him for “yes or no” answers

that, in absence of a narrative, rendered it unable to

assess his understanding and competence. In turn, he

argues, he could not have knowingly and voluntarily

agreed to relinquish his right to appeal, and the waiver

is invalid and unenforceable. Although he does not

state so specifically, his claim of invalid waiver extends

to his waiver’s scope: if he could not understand the

provision at all, he could not have understood that his

appeal of a motion to withdraw a plea constituted

an appeal of his conviction. In short, he did not

knowingly, voluntarily give up his right to appeal the

district court’s judgment on that particular matter.

We disagree.

Waiver of the right to appeal is valid when a

defendant knowingly and voluntarily relinquishes his

right. See Shah, 665 F.3d at 837. In assessing the

knowing and voluntary character of a defendant’s

waiver, the court should lend particular credence to

the defendant’s representations to the court during his

plea colloquy, during which he is obligated to tell the

truth. See Koons v. United States, 639 F.3d 348, 352 (7th

Cir. 2011); Hutchings v. United States, 618 F.3d 693, 699

(7th Cir. 2010). His waiver is knowing and voluntary if

he “understand[s] the choice confronting him and . . .

understand[s] that choice is his to make.” United States
10 No. 11-2412

ex rel. Williams v. DeRobertis, 715 F.2d 1174, 1182-83 (7th

Cir. 1983) (discussing waiver of the right to trial by

jury); see also United States v. Johnson, 534 F.3d 690 (7th

Cir. 2008) (“[W]aiver is likely knowing and voluntary if

the defendant gave it for strategic reasons . . . .”). The

court may also consider the fact that the defendant was

represented by counsel, which, barring an ineffective

assistance claim, supports a conclusion that the defendant’s waiver was informed and strategic. See DeRobertis,

714 F.2d at 1182 (“The purpose of the constitutional

guaranty of a right to counsel is to protect an accused

from conviction resulting from his own ignorance of

his legal and constitutional rights.” (quoting Johnson

v. Zerbst, 304 U.S. 458, 465 (1938)) (internal omissions

omitted)).

Alcala’s alleged language difficulties and level of education might be troubling if he represented himself

pro se or if he alleged ineffective assistance of counsel.

He did not do so, however, and he makes no such charge

against his original trial counsel. These elements of his

background, of which the district court was aware

during his plea colloquy, do not defeat our presumption

that his responses to the court’s inquiries were truthful,

see Koons, 639 F.3d at 352; Bridgeman v. United States,

229 F.3d 589, 592 (7th Cir. 2000). Nor does the fact that

Alcala’s responses were largely “yes” or “no,” without

more, defeat this presumption. See United States v.

Messino, 55 F.3d 1241, 1253-54 (7th Cir. 1995) (holding

that the defendant was not deprived of meaningful

plea colloquy because he was asked only questions requiring “yes” or “no” answers). While we stress that
No. 11-2412 11

narrative responses in a plea colloquy are superior to

inquiries from the court that elicit “yes” or “no” answers,

see, e.g., United States v. Groll, 992 F.2d 755, 760 n.7 (7th

Cir. 1993) (“[S]imple affirmative or negative answers to

the court’s rote interrogatories give us pause in

finding that [the defendant] entered her plea knowingly.”); United States v. Fountain, 777 F.2d 351, 356 (7th

Cir. 1985) (“Simple affirmative or negative answers or

responses which merely mimic the indictment or the

plea agreement cannot fully elucidate the defendant’s

state of mind as required by Rule 11.”), our review of

the plea colloquy, the fact that Alacala was represented

by counsel, and the fact that Alcala was provided with

a translator during the colloquy evince that he comprehended the district court’s inquiries.

We similarly find unpersuasive Alcala’s contention

that he could not waive his right to a trial and appeal

until the district court and his attorney had appraised

him of each and every element of a trial. During the

colloquy, the district court informed him that, by

pleading guilty, he would be giving up his right to a

jury trial, including calling witnesses, further presenting

his case, and submitting his case to the jury for a determination of his guilt or innocence. He understood that

he could choose between being judged by a group of his

peers or pleading to the crime and accepting the Government’s support and sentencing recommendations.

That understanding, coupled with his lawyer’s advice

and the fact that he decided to plead after listening to

several Government witnesses testify against him, indicates that his plea and waiver were strategic choices
12 No. 11-2412

and, thus, valid. See United States v. England, 507 F.3d 581,

586 (7th Cir. 2007) (“A court does not have to give

the defendant a crash course in criminal law or trial

procedure before a defendant’s waiver of his right to

counsel will be voluntary.”); cf. DeRobertis, 715 F.2d at

1182-83 (noting, in evaluating the validity of a

defendant’s waiver of his right to a jury trial, that

“a defendant who is aware that the choice he faces is

between being judged by a group of his fellow citizens

or a judge may conclude intelligently that his lawyer’s

advice, based upon his experience and his knowledge

of law and procedure, is entitled to controlling weight”).

Favorably construing his argument, Alcala’s strongest

claim is that he did not understand that, once accepted

by the court, his plea constituted the basis for his conviction, and, as part of his conviction, an attempt

to withdraw it would fall within the scope of his

appellate waiver. Such specifics were not communicated by either the district court or counsel during

the colloquy. Moreover, neither the court nor counsel

explicitly stated that, once accepted by the court, he had

no right to revoke his plea and that his ability to do

so hinged on the court’s discretion. See generally

United States v. Redmond, 667 F.3d 863, 870-71 (7th Cir.

2012) (“There is no absolute right to withdraw a

guilty plea.”). Arguably, the terms of his plea did not

expressly and unambiguously clarify that he could not

change his mind, see United States v. Sakellarion, 649 F.3d

634, 638-39 (7th Cir. 2011) (“We enforce appellate waivers

when their terms are express and unambiguous . . . .”
No. 11-2412 13

(internal quotation marks omitted)), and we construe

ambiguities in his favor, see Shah, 665 F.3d at 837.

Nevertheless, the terms of the plea agreement and

the colloquy reveal that Alcala knowingly and

voluntarily waived his right to appeal and inherently

accepted the risk that he might regret that decision. He

could not have reasonably expected that the district

court would find him “not guilty” after he had pled

guilty. Once accepted by the court, his guilty plea was

tantamount to his conviction, and the terms of his

plea agreement clearly state that he agreed to waive

his right to appeal his conviction, see supra Part I. He

agreed to abide by all decisions of the court, reserving

his right to appeal on three specific and exhaustive

grounds: (1) any punishment in excess of the statutory

maximum; (2) a sentence based on a constitutionally

impermissible factor; and (3) ineffective assistance of

counsel. See supra Part I. None of those exceptions

underlie this appeal. At worst, he did not fully appreciate

that he might wish to change his mind later, and that

he could not become un-convicted except at the discretion of the court. Yet, such is the risk with pleabargaining and waiver. See McGraw, 571 F.3d at 630-31

(“[P]lea-bargain appeal waivers involve risk: ‘[b]y

binding oneself one assumes the risk of future changes

in circumstances in light of which one’s bargain may

prove to have been a bad one. That is the risk inherent

in all contracts; they limit the parties’ ability to take

advantage of what may happen over the period in

which the contract is in effect.’ ” (quoting United States v.

Bownes, 405 F.3d 634, 636 (7th Cir. 2005))). That the
14 No. 11-2412

risk materialized for Alcala does not trump the knowing

and voluntary nature of his plea and waiver when he

accepted the Government’s deal. Our review is foreclosed.

III. Conclusion

For the foregoing reasons, we DISMISS this appeal.

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