F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee
,

v

.

J O S E M E D I

N A -C A R R A S C O , AKA J osue Medina Carrasco, AKA J ose Antonio Pereida L opez , AKA J ose Pereida-L opez , Defendant-Appellant

. N o. 13-10397

D.C. No. 4:13-cr-00172- RCC-B GM-1

OPI NI ON

A ppeal from the United States District Court for the District of Ariz o na Raner C. Collins, Chief District J udg e, Presiding

Arg ued and Submitted J uly 6, 2015—San F rancisco, California

F iled December 2, 2015

B e fore: Susan P. Graber and Paul J . W atford, Circuit J udg es, and Paul L . F riedman, * District J u d g e

.

Opinion by

J udg e Graber; Dissent by

J udg e F riedman

* T h e Ho n orab le P au l L

. Fried m an , Un ited S tates District J u d g e f o r th e District o f

Co lu m b ia, sittin g b y

d esig n atio n

.U N I T E D S T A T E S V

. M E D I N A -C A R R A S C O 2

SUMMARY * *

Crim inal Law

T h e p anel dismissed a sentencing appeal based on a waiver of appellate rig hts in the plea ag ree m ent, which precluded a challeng e to “any aspect of the defendant’s sentence—including the manner in which t h e sentence is determined and any

sentencing g uideline determinations.”

The p a n el rejected the d efendant’s contention that the requirement that he b e sentenced “in ac c ordance with” the plea ag reement is ambig u o us, and wrote that even if the phrase were su s c eptible to more than one interpretation, the plea colloquy

eliminated any

ambig uity

.

The panel also rejected the defendant’s contention that he

was not sentenced “in accordance with” the pl e a a gr eement because the d istrict c o urt’s “crime of violence” determination

was incorrect. The panel did not reach the mer i t s o f the “crime of violence” question, e x plaining that b e ca u se the defendant ex pressly waived his rig ht to c halleng e sentencing
g uidelines d eterminations, a sentence “in accordance with” the plea a g reement n eed not rest on a correct g uidelines determination.

J udg e F ri e d man dissented because he believes the appella te waiver lang u ag e is ambig uous rendering it unenforceable, and because the district court plainly e rred b y apply ing the crime of violence enhancement.

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.U N I T E D S T A T E S V

. M E D I N A -C A R R A S C O 3

COUNSEL

J ill E. T horpe (arg

ued), Tucson, Ariz o na, for D e fendantAppellant.

Christina M. Cabanillas ( a r g ued), Assistant United States Att o r ney , J ohn S. L eonardo, United States Attorney
, a nd Robert L

. Miskell, Appellate Chief, District of Ariz ona, Tucson, Ariz o na, for Plaintiff-Appellee.

OP INION

GRAB ER, Circuit J udg e:

Defendant J ose Medina-Carrasco p leaded g uilty to illeg al reentry after deportation. The district c ourt sentenced him to 55 months’ impris o n m e nt, to be followed by 3 y ears’ supervised release. On appeal, Defendant cla i m s that the district court erred procedurally by failing to s t ate on the record the applicable sentencing g uidelines rang e and erred substantively in calc u lating the a pplicable sentencing
g uidelines rang e. B ut D efendant’s p lea ag reement contained

a waiver of appellate r ig hts specif i c a l ly precluding a

c h a l l e n g e t o “ a n y a s p e c t o f t h e d e f e n d a n t ’ s sentence—including the manner in which the senten c e is determined and any sentencing g uideline determinations.” W e hold that Defendant was sentenced a ccording to the plea
ag reement and that his waiver of appellate rig hts is valid a nd enforceable. According ly
, we dismiss the appeal.U N I T E D S T A T E S V

. M E D I N A -C A R R A S C O 4

F ACTUAL

AND PROCEDURAL

HI STORY

A federal g rand jury indicted Defendant on one count o f illeg al reentry after deport a t i o n, in v iolation of 8 U .S.C. § 1326(a) as enhanced by § 1326(b)(1). He pleaded g uilty pursuant to a written “fast-trac k ” plea ag r eement. The
ag reement listed 18 d ifferent sentencing rang es, reached b y combining three possible of f ense levels with six possible criminal hist o r y categ ories. The ag reement did not e x plain how the a pplicable offense level would be calculated, e x cept to cite U.S.S.G. § 2L 1.2 a n d state that “[ t] he precise level of offense and number of months sentence impose d will be determined by the court based upon the defendant’s criminal record.” The g uidelines rang es varied widel y : T h e lowest
rang e w as 4 to 10 mont hs’ imprisonment, and the hig hest
rang e was 70 to 87 months’ imprisonment.

The p lea ag reement als o c o n tained a section titled “WA IV E R O F D E F EN S E S A ND APPEAL RI GHTS,” which provided:

Provided the defendant receives a sente n ce in accordance with this fast-track plea ag reement, the defendant waives (1) any and all motions, defenses, probable cause determinations, and obje c tions that the defendant c ould assert to the indic tment o r information; and (2) any r ig ht to file an appeal, any collateral attack
, a nd any other writ or motion that challeng es the conviction,

an order of restitution o r forfeiture, the entry of judg ment ag ainst the defendant, or any aspect o f the defendant’s sentence—including the manner in which the sen t e nce isU N I T E D S T A T E S V

. M E D I N A -C A R R A S C O 5

determined and a

ny sentencing g uide line determinations—and includes, but not limited
t o , any appeals under 18 U.S.C. § 374 2 (sentencing appeals), any mot ions under 28 U. S .C. §§ 2241 and 2255 (habeas petitions), and any ri gh t to file a motion for modification of sentence, includin g under 18 U .S.C. § 3 5 8 2 (c). The defendant acknowl edg es that this waiver shall result in the dismissal of a

ny appeal, collateral attack,

or other motion the defenda n t m ig ht file

c h a l l e ng ing the conviction, order of restituti o n

or f o rfeiture, or s e n t ence in this case. I f the de f endant files a notice o f appeal or other cha lleng e to his/her conviction or sentence,

no t w ithstanding this ag reement, the defendant
ag rees that this c a se shall, upon motion of the
g overnment, be remanded to the district court to determine whether the defendant is in breach of this ag r eeme n t and, if so, to permit the g overnment to w ithdraw from the plea
ag reement.

At the chang e of plea hearing
, D efendant affirmed that he sig ned the plea ag reement a f ter having it ex plained to him b y his lawy er, that he understood the terms a nd conditions of the plea ag reement, and that he a g reed to be bound by those
terms and condi tions. During the Rule 11 colloquy
, F e d. R. Crim. P. 11, the mag istrate judg e addressed the wide r ang e o f sentences listed in the ag reement:

T HE COURT: And Mr. Carrasco, y o u and the Government, with the help of Mr. F lores, have entered into an ag reement w hich,U N I T E D S T A T E S V

. M E D I N A -C A R R A S C O 6

depending u

pon y our criminal history a n d level of offense, states that y ou are ag reeing that the district court judg e may impose a prison sentence o f between f our months in prison up to 87 months in prison.

Do y ou understand that?

THE DEF ENDANT: Yes, J u dg e.

THE COURT: And Mr. Carrasco, there’s

a broad rang e of sentencing possibilities under the plea ag reeme n t , and should the district
court judg e accept the plea agreement, the

r e as o n there’s such a broad rang e, it’ll be u p to the district court judg e to determine which offense level is appropriate for y ou.

And there are three potential o ffense levels, offense level 24, offense level 20, offense level 12. Then, once the district court judg e determines the appropriate offense level, then the district cour t judg e will dete r mine y our c r iminal history [categ ory ] based u pon y our criminal history
, and there’s differ en t criminal history categ ories under each offense level that can g o from criminal history categ o ry one u p to criminal history categ ory six

.

Do y ou understand that’s why th e r e’s a very broad rang e of se n tencing possibilities under the plea ag

r eement?U N I T E D S T A T E S V

. M E D I N A -C A R R A S C O 7

THE DEF ENDANT: Yes, J u dg e.

Defendant also affirmed that he understood t hat h e was g iving up his rig ht to appeal o r collaterally atta c k h i s conviction and his sentence.

The P r e s e n t e n c e I nvestig a tion Report (“PSR”) applied the modified categ orical approach to conclude that Def endant’s prior convict i o n for ag g ravated assault was for a “crime o f violence,” t ri gg ering a 16-level increase under U.S.S.G. § 2L 1.2 ( b ) ( 1 ) (A)(ii). The PSR applied that increase to the base offense level o f 8 a

nd subtracted 3 levels for acceptance of responsibility
, for a total offense level o f 2 1

. After reviewing Defendant’s criminal hi s t ory , the PSR concluded that the appropriate criminal history c ateg ory was I V. The resulting rang e was 57 to 71 months in prison.

I n his sen tencing memorandum, Defendant requested a downward departure or variance, arg uing that “the 16-level enhancement substantially overstates th e s eriousness of the convict i o n, and consequently subjects Mr. Medina to an unduly hars h sentence.” At the sentencing hearing
, Defendant’s lawy er affirmed that, other than the request for the departur e o r variance, he had no “objections to the probation officer’s g uideline recommendation s a n d f actual representations in the r e p o rt.” L ater, defense counsel specifically conceded, referring to Defendant’s ag g ravated assault c onviction, that “it’s a c ri m e o f v i olence,

. . . it’s a level 24.”

The district cour t s e n tenced Defendant to a belowg uidelines 55 months o f imprisonment, to be followe d b y 3
y ears of supervised release. Defendant timely filed a notice of appe a l. B ecause Defendant knowing ly and voluntarilyU N I T E D S T A T E S V

. M E D I N A -C A R R A S C O 8

waived his rig ht t o c h alleng e “any aspect of [ his]
sentence— i n cluding

. . . any sentencing g u ideline determinations,” we dismiss the appeal.

STANDARD OF REVI EW

W e r eview d e novo th e validity of an appeal waiver. United States v. Charles , 581 F .3d 927, 931 (9th Cir. 2009). A waiver of appellate rig hts “is enforceable if ( 1) the lang uag e of the waiver encompasses his rig ht to appeal on the
g rounds raised, and (2) the waiver is knowing ly a nd voluntarily made.” United States v. Jeronimo
, 398 F .3d 1149, 1153 (9th Cir. 2005), overruled o n other grou n ds by United States v. Castillo
, 496 F .3d 947, 957 (9th Cir. 2007) (en banc). To discern whether a waiver is knowing a nd voluntary
, we must ask “wha t t h e defendant reasonably understood to be the terms of the ag reement when he pleaded
g uilty .” United States v. D e la Fuente
, 8 F. 3 d 1333, 1337 (9th Cir. 1993) (footnote omitted).

D I SCUSSI ON

Defendant arg ues that the waiver is unenforceable for two related, but distinct, reasons. Fi rs t, he arg ues that the requirement that he b e sentenced “in accorda n ce with” the plea ag reement is ambig uous, such that his wa i v e r w as not knowing and voluntary

. Second, he contends that he was not sentenced “in accordance w ith” the plea ag reeme n t because his ag g ravated assault conviction was not a conviction fo r a crime of violence.

The requirement that Defendant be s entenced “in accordance with” the plea a g reement is not ambig uous. The
p h rase “in accordance with” r equires only that the ultim a t eU N I T E D S T A T E S V

. M E D I N A -C A R R A S C O 9

sentence fall within the broad rang e au t horiz ed by the plea
ag reement. 1 Defendant ag ree s t h at such an interpretation is plausible, but he arg

u es that the phrase also could be read to require that a

ny sentence imposed rest on a correct g uidelines calculation.

W e cannot accept Defendant’s alternate interpretation for
two reas o ns. F irst, Defendant’s reading would render meaning less the ex press waiver of the r ig ht to challeng e “any sentencing g uideline determinations,” contrary to ba s i c principles of c ontract inte rpretation. See United States v

. Cope
, 5 27 F .3d 944, 949–50 (9th Cir. 2008) (“F or the most

1 Def en d an t asserts th at th e s en ten cin g g rid i n clu d ed in th e p l ea ag reem en t lo o k s lik e “ so m e eso teric alg eb raic alg o rith im .” T o th e ex ten t th at h e is arg u in g th at th e g rid is so co n f u sin g th at it u n d erm in ed h is k n o w i n g co n sen t to th e p lea ag reem en t, w e can n o t accep t th at arg u m en t. W e d o n o t disp u te t

h at th e t y p ical p e r s o n u n f

am iliar w ith th e in tricacies

o f th e f ed eral sen ten cin g g u id elin es w o u ld b e co n f u sed by th e g rid at f

irst. B u t, as w e h av e ex p lain ed
, Def en d an t af f irm ed th a t h is l aw

y er h ad

ex p lain ed t

h e plea ag reem en t an d t

h at Def en d an t u n d ersto o d i ts term s an d

co n d itio n s. Mo reo v er, th e m ag istrate j u d g e ex p lain ed in g en eral h ow th e g rid w o rk ed
, an d ag ain Def en dan t s aid th at h e u n d ersto o d

. Hav in g m ad e th o se rep resen t atio n s , Def en d an t can n o t n o w claim th at h is w aiv er w as n o t k n o w i n g an d v olu n tary becau s e h e d id n o t u n d erstan d th e g rid

. Cf. Un ited S ta tes v. Ha rvey , 4 8 4 F.3 d 45 3
, 4 5 8 (7 t h Cir. 2 0 0 7 ) ( “H e c a n n o t n o w claim th at h e d id n o t u n d erstan d th e ch arg e

. I f h e h ad g en u in ely b een

co n f u s ed
, h e sh o u ld h av e said so m eth in g to th e j u d g e d u rin g th e Ru le 1 1

co llo q u y , at a tim e w

h en th e g o v ern m en t easily

co u ld h av e co rrected th e p ro b l em .”).

W e d o n o t m ean to s u g g e s t th at th ere are n o p ro b lem s w ith t h e g rid

u sed in th e p lea ag reem en t in th is case; w e m erely h o ld th at it w as n o t so in h eren tly co n f

u sin g t h a t Def

en dan t’ s co n sen t co u ld n o t h av e b een k n o w i n g an d v o lu n tary

. In d raf tin g p l ea ag reem en ts, w e en co u rag e th e g o v ern m en t to co n tin

u e to “ seek term s th at w ill co n v ey to each o f th e p arties, an d th e co u rt, a clear u n d erstan d in g o f th e rig h ts an d o b lig atio n s created .” Un ited

S ta tes v. En riq u ez , 4 2 F.3 d 7 6 9 , 7 72 (2 d Cir. 1 9 9 4 ).U N I T E D S T A T E S V

. M E D I N A -C A R R A S C O 10

part, we interpret plea ag reements using the ordinary rules o f
contract interpretation.” (internal quotation marks omitted)); United States v

. Schuman
, 127 F .3d 815, 817 (9th Cir. 1 997) (per curiam) (rejecting the d e f e n dant’s proposed r eading o f the plea ag reement because “it would render the w aiver meaning less”). Second, to allow a n alleg edly incorrect
g uidelines calcu l a t ion to render inapplicable a waiver of the rig ht to appeal sentencing g uidelines determinations “would nullify the waiver based on t h e very sort of claim it was intended t o waive.” United States v. S mith
, 500 F .3d 1206, 1213 (10th Cir. 2007).

Moreover, even if the phrase “in accordance with” the plea ag reement were susc e p tible to more than o ne interpretation, the plea colloquy here eliminated any ambig uity

. Defendant a f

firmed that he understood that there

was a “broad r ang e” o f sentences availabl e u nder the
ag reement and that the d istrict judg e could impose a sentence of between 4 and 87 months’ imprisonment, depending on the applicable offense level and c riminal history categ ory , a mong other factors. And, as we have ex plained, the w ritten plea
ag reement specifically waives the rig ht t o c halleng e “any sentencing g uideline determinations.” Tog ether, the written
ag reement and the Rule 11 c o lloquy were sufficient to ensure ( 1 ) t h a t Defendant knew that the judg e would be deciding where Defendant fell within the a g reed-upon sentencing g rid, and (2) that D efendant understood he was g iving up the rig ht to challeng e that determination.

Defenda n t’s second c ontention—that he w a s not sentenced “in accordance w ith” the plea ag reement b e cause the district court’s “crim e o f violence” determination was incorrect—is similarly unavailing

. W e need not r each the merits of the “crime of violence” question because, reg ardlessU N I T E D S T A T E S V

. M E D I N A -C A R R A S C O 11

o f the correct a

nswer to that q

uestion, Defendant w a s sentenced “in accorda

nce with” the plea ag reement. As we have exp l a i ned, because D efendant ex p ressly waived his rig ht
to c h a lleng e sentencing g u idelines determinations, a sentence “in accordance with” the plea ag reement need not rest o n a correct g uidelines det e r mination. Here, the district court

a p p l i ed the g u idelines rang e recommend by the PSR, t o which Defendant did not object. F u rther, Defendant’s lawy er conceded that Defendant’s conviction w as for a “crime o f violence” a

nd that the 16-lev el enhancement applied. A nd the b elow-g uidelines sentence ultimately imposed fell within the rang e set out in the sentencing g rid. D efendant’s sentence thus was “in accordance with” the plea ag reement.

Defendant ag reed to w aive his rig ht to appeal, a long with

a number of o ther rig hts, in ex chang e for a lower s e ntence. He received the benefit of that b arg ain; a fter subtracting three

o f f e n se levels for acceptance of responsibility
, the district
court imposed a below-g uidelines sentence. That h e “did not realiz e the streng th of his potential appellate claims at the time that he entered into the plea ag reement” does not p ermit him to invalidate his k nowin g a n d voluntary w aiver o f appellate r ig hts. United States v. N g u y e n , 235 F .3d 1179, 1184 ( 9th Cir. 2000), abrogated on other grounds by United States v . Rahman , 642 F .3d 1257, 1259 (9th Cir. 2 011). W e will enforce a valid waiver even if the claims that could have been made on appeal absent that waiver appear meritorious, because “[ t] h e whole point of a waiver

. . . is the relinquishment of claims regardless of their merit.” Id.

DISMISSED.U N I T E D S T A T E S V

. M E D I N A -C A R R A S C O 12

F RI EDMAN, District J udg e, dissenting :

D efendant J ose Medina-Carrasco entered into a p l e a

a gr eement w ith the g o vernment under which he a g ree d t o waive his a

ppellate rig h ts “ provided [ he] receives a sentence in accordance with th[ e ]

. . . plea a g reement.” This court previously has considered this same (or functionally equivalent) p lea ag reement l an gu ag e, from the same United States Attorney ’s O ffice, in eig ht unpublished opinions. 1 I n at least fiv e o f t h o s e cases, the court held that this caveat is ambig uous and thus renders the waiver unenforceable absent

su f f i c i ent clarification from the district court o r mag istrate judg e. 2 B e cause I ag ree that this ambig uous waiver is unenforceabl e , and because I also conclude that the district
court plainly erred in apply ing a “crime of violence”

1 Un ited S ta tes v

. S a l m ero n -Ozu n a , 5 9 7 F. A p p ’ x 4 54 (9 th C ir. 20 1 5) (u n p u b lish ed ); Un ited S ta tes v. Hern a n d ez-Lo p ez , 5 9 4 F. A

p p ’ x 3 8 5 (9 th Cir. 20 15 ) (u n

p u b lish ed ); Un ited S ta tes v. Ba n os-Mejia
, 5 8 8 F. A p p ’ x 5 2 2 (9 th Cir. 2 0 1 4) (u n

p u b lish ed ); Un ited S ta tes v. Perez-Ma n cilla
, 57 3 F. Ap p ’ x 6 1 5 (9 th Cir. 2 0 1 4 ) (u n p u b l ish ed ); Un ited S ta tes v. Go nza l es

Ga rcia
, 5 4 1 F. A

p p ’ x 7 6 4 (9 th Cir. 2 0 13 ) (u n p u b lish ed ); Un ited S ta tes v. Ro d rig u ez , 5 4 0 F

. A

p p ’ x 6 62 (9 th Cir. 20 1 3 ) (u n p u b lish ed ); Un ited S ta tes

v. Ba lta za r-Neri
, 5 4 0 F

. A p p ’ x 6 3 0 (9 th Cir. 2 01 3 ) (u n p u b lish ed ); Un ited S ta tes v. Ag u ila r-Ba l b u en a , 4 7 5 F. A p p ’ x 2 2 2 (9 th Cir. 20 1 2) (u n p u b lish ed ).

2 Ba n o s-Mejia
, 5 8 8 F. A

p p ’ x at 5 2 3 ; Perez-Ma n cilla
, 5 7 3 F. A p p ’ x at 6 1 6 ; Go n za les-Ga rcia
, 5 41 F. A p p ’ x at 7 6 5 ; Ro d

rig u ez , 5 4 0 F. A

p p ’ x at 6 6 2 ; Ag uila r-Ba lb u en a , 4 7 5 F. A p p ’ x at 2 2 3

.

In a six th case, S

almero n -Ozu n a , t

h e co u rt d id n o t sp ecif

ically h old th at t h e cav eat w as am

b ig u ou s, b u t stated th at “ [w ]e are u n p ersu ad ed th at th e ap p eal w aiv er is am

big u o u s in lig h t of th e cla rifyin g co llo q u y a t th e ch a n g e o f p lea h ea rin g .” 5 9 7 F. A

p p ’ x at 45 4 (em

p h asis ad d ed ). In o n ly

o n e of th e eig h t c a s e s, Un ited Sta tes v. Hern a n dez-Lo p ez , 59 4 F. A

p p ’ x at 3 8 5
, d id th e p an el ad o p t th e p o sitio n tak en b y th e m aj o rity in th is case.U N I T E D S T A T E S V

. M E D I N A -C A R R A S C O 13

enhance ment in calculating Medina-Carrasco’s sentencing
g uideline rang e, I

respectfully

dissent.

I . A P P E A L W A I V E R S

I beg in by acknowledg ing that this court and every other federal court of appeals to h ave considered the iss u e h ave held that appeal waivers are v alid: I f a defendant may waive his constitut i o nal rig hts a s part of a plea ag reement, they
reason, it follows that a defendant may waive statutory rig hts
to appeal a n d t o collaterally attack a conviction or sentence. See, e.g., United S

tates v

. Navarro-Botello
, 912 F

. 2 d 318, 321 (9th Cir. 1990); United States v. W iggins
, 905 F .2d 51, 53–54 (4th Cir. 1990). T hose decisions have been criticiz ed by trial judg es and commentators on a variety of g rounds. 3 Primary
among them is the reality that g iving up the r i gh t to trial, to confront witnesses at trial, and to p rese r ve the privileg e ag ainst self-incrimination are a ll known trial rig hts that necessarily a

re forfeited by the very act of pl e a d i n g g uilty

3 S ee, e.g

. , Un ited S ta tes v. Mela n co n , 9 7 2 F.2 d 5 6 6 , 5 7 1

– 73 (5 th Cir. 1 9 9 2 ) (J u d g e P ark er, c o nc u rrin g sp ecially ); Un ited S ta tes v. Jo h n so n , 9 9 2 F. Su p p

. 4 37
, 4 3 8

– 40 (D.D.C. 1 99 7 ) (J u d g e Haro ld Green e); Un ited S ta tes v. Ra

yn o r , 9 8 9 F. Su

p p

. 43
, 4 4

– 4 9 (D.D.C. 1 9 97 ) (J u dg e Fried m an ); Un ited S ta tes v. Pe r e z , 4 6 F. Su p p

. 2 d 5 9
, 6 4

– 7 2 (D. Mass. 1 9 9 9 ) (J u d g e Gertn er), a b ro g ated b y Un ited S ta t es v. Teeter
, 2 5 7 F.3 d 1 3 (1 st Cir. 2 0 01 ); U

n ited S ta tes v. Va n d

erwerff
, No

. 1 2

- CR- 0 0 6 9
, 20 1 2 W L 2 5 1 4 9 3 3
, at * 5 (D. Co lo

. J u n e 2 8
, 2 0 1 2 ) ( J u d g e Kan e), rev’d a n d

rema n d ed
, 7 8 8 F.3 d 1 2 6 6 (1 0 th C ir. 2 0 1 5 ); Ro b ert K. Calh o u n , W a i ver o f th e Rig h t to Ap

p ea l
, 2 3 H A ST I

NG S C ONST

. L .Q. 1 2 7 (1 9 9 5 ); A lex an d ra W

. Reim elt, No te, An Un

ju st Ba rg a in : Plea Ba r

g a in s a n d W

a iver o f th e Rig h t
to Ap p ea l
, 5 1 B .C. L

. R E V

. 8 7 1 (2 0 1 0 ) ; Nan cy J. K in g , Plea Ba rg a in s th a t W a ive Cla ims o

f In effective Assista n ce – W a i vin g Pa d i lla a n d Frye
, 5 1 D U Q

. L

. R E V

. 6 4 7 (2 0 1 3 ); A n d rew D ean , N o te, Ch allen g in g A p p e a l W a ivers
, 6 1 B UF F

. L

. R E V

. 1 1 9 1 ( 2 0 1 3 ) ; K e v in B en n ard o , Po st-S en ten cin g Ap p ella te W a ivers , 4 8 U. M I CH

. J

. L

. R E F ORM . 3 4 7 (2 0 1 5 ).U N I T E D S T A T E S V

. M E D I N A -C A R R A S C O 14

instead of proceeding to trial. T he defendant consequently knows precisely what he or she is g iving up in ex chang e for the benefits of the g uilty

plea at the very moment the plea is entered — a trial and the constitutional rig hts that accompany it.

Sentencing
, however, d oes not occur contemporaneously with t h e plea and waiver. I t is a future event, and the mistakes f

rom which one mig h t have reason to appeal have
not y et occurred at the time a d efendant waives the rig h t to appeal or collaterally atta c k the plea or sentencing proceeding s. A de f

e n dant cannot know what he or she has
g iven up by waiving the rig ht to ap p e a l u ntil after the judg e and counsel have r eviewed a y e t-to-be-prepared presentence investig ation report, after the judg e has c o n s idered other information not known to the defend a n t a t the time of the
p lea, and after the judg e has actually imposed sentence. By then it is too late, no matter h ow disproportionate the
sentence or how eg reg ious the procedural o r s u b stantive errors committed by the sentencing judg e or the defendant’s

own counsel. I t is hard to see how a d e fendant at the plea hearing can ever knowing ly and intellig e ntly

— that is, with “a full awareness of both the natur e of the r ig ht[ s] being abandoned and the consequences of the decision to abandon it,” Moran v. B urbine
, 4 75 U .S. 412, 422 (1986) — waive the

r i gh t t o appeal or collaterally attack a sentence that has not
y et been imposed. Such prospective waivers in anticipation of unknown f

uture events a

r e inherently unknowing a nd unintellig ent. 4

4 N o r can ap p eal w aiv ers be tru ly v o lu n tary w h en o n e co n tractin g p arty

— th e g o v ern m en t

— h a s su ch a g reat ad v an tag e in b arg ain in g p o w er b ecau se th e p recise c h arg e o r ch arg es to b e b ro u g h t an d t h e resu ltin g ad v iso ry Gu id elin e sen t en cin g ran g e are to tally u p to th e p ro secu t o r. It isU N I T E D S T A T E S V

. M E D I N A -C A R R A S C O 15

Putting t h ese concerns aside, the courts of appeals (as noted) are unanimous in recog niz ing the presumptive validity

o f appeal w aivers. Each o ne of those courts, however, h a s done so with the p roviso that such waivers must be r ig orously assessed to assure that t hey have been entered knowing ly
, intellig ently
, and v olu n t arily

. F urthermore, the courts have made clear that t h e q

uestion is n o t one of form b ut o f substance: Did the defendant in fact knowing ly
, intellig ently
, and voluntarily w aive the rig h t to ap p e al or to collaterally

a t t a ck a c onviction o r sentence

— a determination w h i c h

mu s t be based upon the specific facts and circumstances
pres e n t ed by the particular case, including the defendant’s “backg round, ex perien ce, and conduct.” United States v

. Martinez
, 14 3 F. 3 d 1266, 1269 (9th Cir. 1998) (quoting Edmonds v. Arizona
, 451 U.S. 477, 482 (1981)). And as with waivers of constitutional rig h ts, “a heavy burden” rests on the
go v ernment to demonstrate by a preponderance of t h e evidence that the waiver was v oluntary and that the defendant knowing ly and intellig ently waived these important statutory rig hts. S ee Berghuis v. Thompkins
, 560 U. S

. 3 7 0
, 383–84 (2010); United States v. G aribay
, 143 F .3d 534, 536–37 (9th Cir. 1998); see also United States v. Andis
, 333 F .3d 886, 890 (8th Cir. 2002).

I I

. T H I S W A I V E R I S U N E N F O R C E A B L E

Under this court’s jurisp r u dence, Medina-Carrasco’s “waiver o f his appellate rig hts is enforceable if (1) the lang uag e of the waiver encompasses his rig ht to appeal on the
g r o u n d s raised, a

nd (2) the waiver is knowing ly [
, ] [ intellig ently ,] and voluntarily made.” United St a t e s v

.

illu so ry to su g g est th at th e d ef en dan t h as an y real b arg ain in g po w er in th is

co n tex t, an y

f ree an d d elib erate ch o ice.U N I T E D S T A T E S V

. M E D I N A -C A R R A S C O 16

C h arles
, 581 F .3d 927, 9 31 (9th Cir. 2009) (quoting Unite d States v. Jeronimo
, 398 F .3d 1 1 49, 1154 (9th C ir. 2005), overruled on other grounds b y United States v. C

a s tillo
, 496 F .3d 947, 9 57 (9th Cir. 2007) ( en banc)). T he c ourt must “determine what the defendant reasonably understood to be the terms of the ag reement when he pleaded g uilty ,” U n ited States v. De la Fuente
, 8 F. 3 d 1 3 3 3, 1337 (9th Cir. 1 993) (footnote o mitted), and then that h e voluntari l y and knowing ly w aived his rig hts a s h e understood them, see Charles
, 581 F .3d at 932 (B ecause defendant “reasona b l y could have believed that he r e t a i ned his rig ht to appeal his
sentence to the ex tent t h a t t he district court determined he

was a career o ffe n d e r , ” “[ d efendant] did not waive h is rig ht
to appeal [ t h a t] determination.”). “ T he drafter of the plea
ag reement, ty

pically the g o vernment, is responsible fo r a n y lack o f clarity such that ambig uities are construed in favor o f the defendant.” Charles
, 581 F .3d at 931.

Section I V of the plea ag reement here states that MedinaCarrasco waives his rig ht to appeal “provided [ he] receives a sentence in accordance with this fast

- track plea ag reement.” As the majority notes, Medina-Carras c o arg ues that the “in accordance with” caveat is susceptible to two interpretations. Slip Op. a t 8. F irst, the waiver is effective so long as MedinaCarrasco received a sentence in a ny of the eig h teen different sentencing r a n ge s listed in the sentencing g rid c ontained in the plea ag reement, because that is what he ag reed to. This is the interpretation a dopted by the majorit y

. Slip Op. at 8. Or, secon d
, t he w aiver is effective so long as MedinaCarrasco r e c eived a sentence based on a properly calculated sentencing g uideline rang e, id. at 9
, that is, so long as it does
not ex c eed 87 months. The majority reject s t h i s a lternative interpretation as implausible for two reasons: (1) it would “render meaning less the ex press w aiver of th e r i g ht toU N I T E D S T A T E S V

. M E D I N A -C A R R A S C O 17

challeng e ‘any sentencing g uideline determinations’ contrary to basic principles of contract interpretation”; and (2) to allow

an alleg e dly incorrect g uidelines calculation to render a waiver inapplicable “ would nullify the waiver based on the
very sort of claim it was i n t e n d ed to waive.” Slip Op. at 9–10. 5

I disag r ee with the majority ’s view that the s e c o nd, alternative interpretation is implaus i b l e

. I n my view, both interpretations posited by Me d i na-Carrasco are plausible. And if b o th are plausible, the waiver is ambig uous. I t follows that Medina-Carras c o did not knowing ly and intellig ently waive his r ig ht to appeal the district court’s determination o f whether h i s p r ior conviction qualified a s a “crime o f

5 T h e m aj o rity ’ s rej ectio n o f t h is altern ativ e in terp retatio n as im p lau sib le is tro u b leso m e in lig h t o f th e f

act th at a p an el o f t

h is co u rt seem in g ly h eld th e ex act o p p o site in Un ited S ta tes v. Ba l ta za r -Neri
, 5 4 0 F. A p p ’ x at 6 3 1
, an u n p u b l i s h e d o p in io n th at co u n sel w ere d irected to ad d ress in th eir b rief s b y th is co u rt’ s o rd er o f Ju n e 1 8
, 2 0 1 4

. In Ba lta za r-Neri
, th e co u rt

co n f ro n ted a f u n ctio n ally eq u iv alen t cav eat req u ir i n g t h e sen ten ce to b e

“ co n sisten t w ith ” th e p l ea ag reem en t. Id

. L i k e Med in a- C arrasco , th e d ef en d an t th ere ch allen g ed a 1 6

- lev el sen ten cin g en h an cem en t f o r a crim e

o f v io len ce u n d er th e sam e sen ten cin g g u id elin e at i s s u e h ere. T h e g o v e rn m en t co n ced ed th at th e en h an cem en t w as in co rrectly ap p lied b e c a u se t h e d ef en d an t h ad n ev er b een co n v icted o f a crim e o f v io len c e , b u t c o n t en d ed th at th e d ef en d an t h ad w aiv ed h i s rig h t to ap p eal

n ev erth eless. Id

. T h e d ef

en d an t u rg ed th e co u rt to ad op t th e i n terp retatio n ad v an ced by Med in a- C arrasco in th i s case — t h at h is sen ten ce w a s no t

“ co n sisten t w ith ” th e p le a ag reem en t b ecau se t h e sen ten cin g g u id elin e

ran g e w as in co rrectly calcu lated — an d th e co u rt e x p licitly d id so , p resu m ab ly co n sid erin g it p la us i b l e

. Id

. T h e co u rt said : “ T h e s ix teen

lev el en h an cem en t is ‘ co n sisten t’ w ith th e p lea ag reem en t on ly if [th e d ef en d an t ] w as p rev io u sly co n v icted o f b u rg lary o f a dw ellin g ,” w h i ch h e

w as n o t, an d “ co n clu d e[ d ] th at [th e d ef en d an t] d id n o t u n am

b ig u o u sly

w aiv e h is rig h t to ap p eal.” Id

.U N I T E D S T A T E S V

. M E D I N A -C A R R A S C O 18

violence” under U.S.S.G. 2L 1.2(b)(1)(A)(ii). See Charles
, 581 F .3d at 931–32.

As n oted, the majority rejects the alternati ve interpretation f

or two reasons. I n my opinion, the first reason is incorrect because t h e w aiver of the rig ht to appeal “any sentencing g uideline determinations” is not “render[ ed] meaning less” u nder that alternative interpretation. The basic
pr i n c i ples of contract interpretation invoked b y the majority dictate that the contract “must b e re a d a s a whole and every part interpreted with reference to the whole, with preference
g iven t o reasonable interpretations.” W apato Heritage, L.L.C. v. United States
, 637 F

. 3d 1033, 1039 ( 9th Cir. 2 011) (internal q

uotation omitted). W h e n r ead toge t h er with the alternative interpretation of the caveat “in accordance w ith,” that portion of the waiver mea n s “ any correct sentencing
g uideline determinations.” Althoug h it would bar fewer appeals than the g overnment would prefer, the waiver would be far from meaning less.

As for the majority ’s second reason — t hat this interpretation counterintuitively al l o ws appeals o n c laims that ordinarily would be waived by plea ag reement waivers

— I ag r ee. B ut the fact that the g overnment almost c ertainly did not intend to d raft a seeming ly self-defeating w a iver is irrelevant. Our inquiry must focus on the literal terms of the plea ag reement, a contract drafted by the g ove r n m ent, a nd what Medina-Carrasco “reasona b l y understood to be the
terms of t h e ag reement when h e p leaded g uilty .” De la Fuente
, 8 F .3d at 1337; see also Charles
, 581 F .3d at 931; United States v. Co

p e , 527 F .3d 944, 950 (9th Cir. 2 008) (“The drafter of the plea ag r e ement — usually the
g overnment

. . . — bears r esponsibility for any lack of clarity
, s u ch that [ a] mbig u ities are

. . . construed in favor of t h eU N I T E D S T A T E S V

. M E D I N A -C A R R A S C O 19

d e fendant,

. . . and the g o vernment is ordinarily held to t h e literal terms of the plea ag reement it made.”) (quoting United States v. Transfiguracion
, 442 F .3d 1222, 1228 (9 th Cir. 2006)) (internal quotation marks and citations omitted).

Unlike the majority
, I therefore find both interpretations of the “in accordance with lang uag e” plausible. And because Medina-Carrasco could h ave reasonably understo o d the waiver to mean e ither o f the two plausible interpretations or, frankly
, not understood what he w a s w ai v ing at all, the plea
ag reement was ambig uous and his waiver of appellate rig hts

was not knowing and intellig e nt. Absent any c larification from the mag istrate judg e that eliminated the ambig uity of the written a g reement, the waiver of a ppellate rig hts is unenforceable. See United States v. Clark
, 2 1 8 F .3d 1092, 1095 (9th Cir. 2000) ( “I f

. . . a term of a plea ag reement is not clear o n its face, we look to the facts of the case to determine what the parties reasonably understood to be the terms of the
ag reement. I f, after we have e x amined the ex trinsic evidence,

we still find a mbig uity reg arding what the parties reasonably understood to be th e t er m s of the a g reement, then the
g overnment ‘ordinarily must bear responsibility for any lack of clarity .’”) ( quoting De la F u ente , 8 F .3d at 1338); United States v. Baramdyka
, 95 F .3d 840, 843 (9th Cir. 1 996) (“This
court looks into the cir c u m s t ances surrounding the entry o f the plea ag reement to determine whether the defendant ag reed to its terms knowing ly and voluntarily .”).

I n that reg a

rd, I r espectfully disag r ee with the majority ’s conclusion that, even assuming the “ in acc o r d a n ce with”
caveat in the plea a g reement was a mbig uous — and I think it is — the plea colloquy saves the waiver

. S l i p Op

. at 10. W h ile the mag istrate judg e asked Medina-Carrasco a number of questions r eg a

r ding the plea ag reement a nd hisU N I T E D S T A T E S V

. M E D I N A -C A R R A S C O 20

constitutional and statutory rig h ts, o n ly one concerned the waiver of his rig ht to appeal: “[ D] o y ou understand tha t, according to y our w ritten plea a gr e e ment, y ou are g iving up y our rig ht to appeal y our conviction and sentence? ” The
mag istrate judg e, however, did not ex plain the parameters o f the waiver or the circumstances in which it would apply

. He failed to clear up or even address the ambig u ity as t o t h e meaning of the phrase “in accordance with.” A n d t he representative of the same United States Attorney ’ s Office
t h a t had been admonished by this court on several pr i o r occasions in similar situations, see s u p ra at 1, failed to urg e him to do so.

Moreover, the sing le question p osed by the mag istrate judg e provided incorrect in f ormation. Even the majority acknowledg es that Medina-Ca r r asco did not waive every issue h e mig ht appeal from his conviction and sentence — at

a bare minimum, under the majority ’s i n t e r pretation, he reserved the rig ht to appeal from a sentence outside the
rang e s listed in the ag reement. Slip Op. at 8–9. And despite the unequivocal lang uag e of the plea ag reement, he p reserved the rig ht to raise on collateral attack a claim of ineffective assistance of counsel at the p l e a or sentencing and c ertain other constitutional violations th a t infected either. See W ashington v. Lampert
, 422 F .3d 864, 870–71 (9th Cir. 2 005) (holding that plea ag reement that waives rig ht to file federal habeas p e t ition is unenforceable with respect to ineffective

as s istance of counsel claim that challeng es voluntariness o f waiver); see also United States v

. Adams
, 780 F .3d 1182, 1183–84 (D.C. Cir. 2 015); United States v. Hahn
, 3 5 9 F .3d 1315, 1327 (10th Cir. 2004); A n dis
, 3 33 F .3d at 89 1

. The plea colloquy therefore failed to e liminat e t he ambig uity o f the written p lea ag reement a nd to c larify that the c a v e at meant only that Medina-Carrasco could appeal if the sentenceU N I T E D S T A T E S V

. M E D I N A -C A R R A S C O 21

was outside the b road 4 to 8 7 months rang e of imprisonment in the ag reement. I

n my view, the waiver of appellate rig hts is u nenforceable, and I w o uld reach the merits of MedinaCarrasco’s appeal.

There is y e t a n other, separate reason to conclude that Medina-Carrasco did not understand the consequences of his plea sufficiently to knowing ly and intellig ently waive his rig ht to appeal. L ike the majority
, I
, too, am concerned about the lack of clarity in the “ alg e b r ai c a lg orithm” of the plea
ag reement. Slip Op. a t 9 n.1. I n my view, however, the lack of clarity is fatal to the v ali d i t y o f the appeal waiver, i n dependent of the ambig uity addressed above. W h i l e ostensibly labeled a Rule 11(c)(1)(C) plea ag reement, the g r id presented in the plea ag reement contains a mind-numbing 18 different p otential g u ideline sentencing rang es, re a c h ed b y combining three possible offense lev e ls with six possible criminal history categ ories, which apparently r eflect reductions for acceptance of responsibility a nd the fast track
prog r am, without so stating

. The plea ag reement contains no

ex p lanation as to how the district court woul d determine which rang e or criminal history cate go ry would apply

. The potenti a l sentences rang e from 4 months to 87 months o f imprisonment, d e p ending on what adjustments, offense characteristics, and pri o r o ffenses are counted and whether Medi n a- C arrasco w as or was not previously convicted o f a crime of violence. The majority states that “ t h e t y pical
person unfamiliar with the in t r icacies of the federal sentencing g u idelines would be confused by the g rid at first,” Slip Op. at 9 n.1, but finds c o mfort in the f act that this Spanish-speaking defendant affirmed throug h an interpreter that his lawy er had ex plained the plea ag reement to him and that the mag istrate judg e “ex plained in g eneral how the g r id

w orked,” id. I n my view, the p lea ag r eement drafted by t h eU N I T E D S T A T E S V

. M E D I N A -C A R R A S C O 22

g overnment is unacceptable — certainly I would never accept a plea based on this document — and the mag istrate judg e’s

ex p lanation woefully

failed to clarify it. Medina-Carrasco’s
consent therefore could not have been knowi n g a n d intellig ent.

I I I

. C R I M E O F V I O L E

N C E : T H E D I S T R

I C T C O U R

T P L A I N L Y E R R E D

The district court concluded that Medina-Carrasco’s prior
ag g r avated assault conviction in Ariz ona categ orically qualified a s a “crime of violence” u n d er Section 2L 1.2(b)(1)(A)(ii) of the F ederal Sentencing Guidelines and therefore applied a 16-level enhancement. The definition o f “crime of violence” includes the crime of ag g ravated assault

un d e r s t ate law or “any o ther o ffense that h as as an element
t h e use, attempted use, or threatened use of phy sical for ce ”
ag ainst another. U.S.S.G. § 2L 1.2, cmt. n.l; see United States

v. Marcia-Acosta
, 780 F

. 3d 1244, 1248 ( 9th Cir. 2 0 1 5). B ecause Medina-Carrasco f ailed to object to the 16-level enhancement, this court may only r everse if it finds plain

error. 6

6 A lth o u g h Med in a- C arrasco co n c e d ed at sen ten cin g th at th e

en h an cem en t ap p lied , h e d id n o t th ereb y w aiv e h is rig h t to ch allen g e th e

sen ten ce. T h ere is n o ev id en ce t h at Med i n a- Carr a s c o m a d e a tactical d ecisio n n o t t o ch allen g e th e p ro b atio n o f f ice’ s (in co rrect) in itial d eterm in atio n th at h i s p rio r co n v ictio n q u alif

ied as a “ crim e o f v i o l en ce.” S ee U n ited S ta tes v. Jimen ez , 2 58 F.3 d 1 1 2 0
, 1 1 2 4 (9 th Cir. 20 0 1) (h o ld i n g th at a d ef

en d an t w h o co n ced ed th at th e P SR co rrectly ap p lied th e G u i d e lin es d id n o t w aiv e h is rig h t to ch allen g e h is sen ten ce w h ere th e r e

w as n o ev id e n ce th at h e co n s id ered o b j ectin g bu t f

o r “ so m e tactical or

o th er reaso n ” rej ected th e id ea); s ee id

. at 1 1 2 4 (co u

rt’ s leg al d eterm in atio n s “ are n o t im m u n i zed f ro m ap p ellate rev iew sim

ply b ecau s e

a d ef en d an t, p resen t at a h earin g w h ere th at d eterm in atio n i s m ad e,

m istak en l y

ag rees w ith

th e co u rt.”).U N I T E D S T A T E S V

. M E D I N A -C A R R A S C O 23

The g o vernment and Medina-Carrasco ag ree that A.R.S. § 13-203(A) is divisible under the “ modified c a t eg orical approach” announ c e d b y the Supreme Court in Taylor v

. United States
, 495 U.S. 575 (1990). See also Descamps v

. United States
, 133 S. Ct. 2 276, 2283–85 (2013). They a l so ag ree that Medina-Carrasco specifically was convicted under A.R

. S

. § 13-203(A)(3), a subsection o f the statute which requires “ [ k ]nowing ly touching another person with the intent
to injure, in s u l t or provoke such person.” The g overnment, however, contends that subsection (A)(3) is further d ivisible, and that Medina-Carrasco was convicted under the “intent to injure” provision o f t h at subsection. The g overnment is
wrong

.

I n this case, the jury woul d not have been instructed to decide whether it found Medina-Carrasco g uilty o f touching with the intent to injure because that is not a separate statutory element under subsection (A )(3). See R endon v

. Holder
, 764 F .3d 1077, 1086 (9th Cir. 2014 ) (“Only when
state law requires that in order to convict the d e f endant the jury must u nanimously ag ree that he c o m m i tted a particular substantive offense contained wit h i n t h e d i s j u nctively worded
statute are we able to conclude that the statute contains alternative elements a

nd no t alternative means .”) (emphasis in orig inal). Al l that would have been required of the jury

was to determine unanimously whether it found that MedinaCarrasco’s conduct violated sub s ection (A)(3); some jurors could have found intent to injure, others intent to insult, and still others intent to provoke, and still have re n d ered a

u nanimous verdict. Rendon
, 764 F .3d a t 1085 (“As l o n g a s the defendant’s conduct violates the statute, the jury can d i s a gree as to how, and a later sentencing court can n o t conclude that the jury in fact ag reed on the particular means of commission.”).U N I T E D S T A T E S V

. M E D I N A -C A R R A S C O 24

Under Johnson v. Unit e d States
, 5 59 U.S. 133, 138–40 (2010), “ touching ” does not qualify a s “the use, attempted
use, or threatened u se of phy sical force,” a n d MedinaCarrasco’s p rior c onviction u n der subsection (A)(3) therefore does n ot qualify as a “crim e o f violence” under Section 2L 1.2(b)(1)(A)(ii). Accord United States v. Ossana
, 6 3 8 F .3d 895, 900 ( 8th Cir. 2011) ( h o l d ing that a conviction under A.R.S. § 13-203(A)(3) “w o u l d n o t qualify a s a crime o f violence” bec a u s e “ such c ontact does not qualify as the use of phy sica l force b ecause it is not violent force”) (citing Johnson
, 5 59 U.S. at 138–39). Adding 1 6 additional offense levels when there was no crime of violence quadrupled Medina-Carrasco’s sentencing g uideline rang e from 12 to 18 months of imprisonment to 57 to 7 1 months of imprisonment. This was plain error.

I therefore would r everse the senten c e and remand for resentencing

.