FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JOSE MEDINA-CARRASCO, AKA

Josue Medina Carrasco, AKA Jose

Antonio Pereida Lopez, AKA Jose

Pereida-Lopez,

Defendant-Appellant.

No. 13-10397

D.C. No.

4:13-cr-00172-

RCC-BGM-1

OPINION

Appeal from the United States District Court

for the District of Arizona

Raner C. Collins, Chief District Judge, Presiding

Argued and Submitted

July 6, 2015—San Francisco, California

Filed December 2, 2015

Before: Susan P. Graber and Paul J. Watford, Circuit

Judges, and Paul L. Friedman,* District Judge.

Opinion by Judge Graber;

Dissent by Judge Friedman

* The Honorable Paul L. Friedman, United States District Judge for the

District of Columbia, sitting by designation.
2 UNITED STATES V. MEDINA-CARRASCO

SUMMARY**

Criminal Law

The panel dismissed a sentencing appeal based on a

waiver of appellate rights in the plea agreement, which

precluded a challenge to “any aspect of the defendant’s

sentence—including the manner in which the sentence is

determined and any sentencing guideline determinations.”

The panel rejected the defendant’s contention that the

requirement that he be sentenced “in accordance with” the

plea agreement is ambiguous, and wrote that even if the

phrase were susceptible to more than one interpretation, the

plea colloquy eliminated any ambiguity.

The panel also rejected the defendant’s contention that he

was not sentenced “in accordance with” the plea agreement

because the district court’s “crime of violence” determination

was incorrect. The panel did not reach the merits of the

“crime of violence” question, explaining that because the

defendant expressly waived his right to challenge sentencing

guidelines determinations, a sentence “in accordance with”

the plea agreement need not rest on a correct guidelines

determination. 

Judge Friedman dissented because he believes the

appellate waiver language is ambiguous rendering it

unenforceable, and because the district court plainly erred by

applying the crime of violence enhancement.

** 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. MEDINA-CARRASCO 3

COUNSEL

Jill E. Thorpe (argued), Tucson, Arizona, for DefendantAppellant.

Christina M. Cabanillas (argued), Assistant United States

Attorney, John S. Leonardo, United States Attorney, and

Robert L. Miskell, Appellate Chief, District of Arizona,

Tucson, Arizona, for Plaintiff-Appellee.

OPINION

GRABER, Circuit Judge:

Defendant Jose Medina-Carrasco pleaded guilty to illegal

reentry after deportation. The district court sentenced him to

55 months’ imprisonment, to be followed by 3 years’

supervised release. On appeal, Defendant claims that the

district court erred procedurally by failing to state on the

record the applicable sentencing guidelines range and erred

substantively in calculating the applicable sentencing

guidelines range. But Defendant’s plea agreement contained

a waiver of appellate rights specifically precluding a

challenge to “any aspect of the defendant’s

sentence—including the manner in which the sentence is

determined and any sentencing guideline determinations.” 

We hold that Defendant was sentenced according to the plea

agreement and that his waiver of appellate rights is valid and

enforceable. Accordingly, we dismiss the appeal.
4 UNITED STATES V. MEDINA-CARRASCO

FACTUAL AND PROCEDURAL HISTORY

A federal grand jury indicted Defendant on one count of

illegal reentry after deportation, in violation of 8 U.S.C.

§ 1326(a) as enhanced by § 1326(b)(1). He pleaded guilty

pursuant to a written “fast-track” plea agreement. The

agreement listed 18 different sentencing ranges, reached by

combining three possible offense levels with six possible

criminal history categories. The agreement did not explain

how the applicable offense level would be calculated, except

to cite U.S.S.G. § 2L1.2 and state that “[t]he precise level of

offense and number of months sentence imposed will be

determined by the court based upon the defendant’s criminal

record.” The guidelines ranges varied widely: The lowest

range was 4 to 10 months’ imprisonment, and the highest

range was 70 to 87 months’ imprisonment.

The plea agreement also contained a section titled

“WAIVEROFDEFENSESAND APPEALRIGHTS,” which

provided:

Provided the defendant receives a

sentence in accordance with this fast-track

plea agreement, the defendant waives (1) any

and all motions, defenses, probable cause

determinations, and objections that the

defendant could assert to the indictment or

information; and (2) any right to file an

appeal, any collateral attack, and any other

writ or motion that challenges the conviction,

an order of restitution or forfeiture, the entry

of judgment against the defendant, or any

aspect of the defendant’s sentence—including

the manner in which the sentence is
UNITED STATES V. MEDINA-CARRASCO 5

determined and any sentencing guideline

determinations—and includes, but not limited

to, any appeals under 18 U.S.C. § 3742

(sentencing appeals), any motions under

28 U.S.C. §§ 2241 and 2255 (habeas

petitions), and any right to file a motion for

modification of sentence, including under

18 U.S.C. § 3582(c). The defendant

acknowledges that this waiver shall result in

the dismissal of any appeal, collateral attack,

or other motion the defendant might file

challenging the conviction, order of restitution

or forfeiture, or sentence in this case. If the

defendant files a notice of appeal or other

challenge to his/her conviction or sentence,

notwithstanding this agreement, the defendant

agrees that this case shall, upon motion of the

government, be remanded to the district court

to determine whether the defendant is in

breach of this agreement and, if so, to permit

the government to withdraw from the plea

agreement.

At the change of plea hearing, Defendant affirmed that he

signed the plea agreement after having it explained to him by

his lawyer, that he understood the terms and conditions of the

plea agreement, and that he agreed to be bound by those

terms and conditions. During the Rule 11 colloquy, Fed. R.

Crim. P. 11, the magistrate judge addressed the wide range of

sentences listed in the agreement:

THE COURT: And Mr. Carrasco, you

and the Government, with the help of Mr.

Flores, have entered into an agreement which,
6 UNITED STATES V. MEDINA-CARRASCO

depending upon your criminal history and

level of offense, states that you are agreeing

that the district court judge may impose a

prison sentence of between four months in

prison up to 87 months in prison.

Do you understand that?

THE DEFENDANT: Yes, Judge.

THE COURT: And Mr. Carrasco, there’s

a broad range of sentencing possibilities under

the plea agreement, and should the district

court judge accept the plea agreement, the

reason there’s such a broad range, it’ll be up

to the district court judge to determine which

offense level is appropriate for you.

And there are three potential offense

levels, offense level 24, offense level 20,

offense level 12. Then, once the district court

judge determines the appropriate offense

level, then the district court judge will

determine your criminal history [category]

based upon your criminal history, and there’s

different criminal history categories under

each offense level that can go from criminal

history category one up to criminal history

category six.

Do you understand that’s why there’s a

very broad range of sentencing possibilities

under the plea agreement?
UNITED STATES V. MEDINA-CARRASCO 7

THE DEFENDANT: Yes, Judge.

Defendant also affirmed that he understood that he was

giving up his right to appeal or collaterally attack his

conviction and his sentence.

ThePresentence Investigation Report (“PSR”) applied the

modified categorical approach to conclude that Defendant’s

prior conviction for aggravated assault was for a “crime of

violence,” triggering a 16-level increase under U.S.S.G.

§ 2L1.2(b)(1)(A)(ii). The PSR applied that increase to the

base offense level of 8 and subtracted 3 levels for acceptance

of responsibility, for a total offense level of 21. After

reviewing Defendant’s criminal history, the PSR concluded

that the appropriate criminal history category was IV. The

resulting range was 57 to 71 months in prison.

In his sentencing memorandum, Defendant requested a

downward departure or variance, arguing that “the 16-level

enhancement substantially overstates the seriousness of the

conviction, and consequently subjects Mr. Medina to an

unduly harsh sentence.” At the sentencing hearing,

Defendant’s lawyer affirmed that, other than the request for

the departure or variance, he had no “objections to the

probation officer’s guideline recommendations and factual

representations in the report.” Later, defense counsel

specifically conceded, referring to Defendant’s aggravated

assault conviction, that “it’s a crime of violence, . . . it’s a

level 24.”

The district court sentenced Defendant to a belowguidelines 55 months of imprisonment, to be followed by 3

years of supervised release. Defendant timely filed a notice

of appeal. Because Defendant knowingly and voluntarily
8 UNITED STATES V. MEDINA-CARRASCO

waived his right to challenge “any aspect of [his]

sentence—including . . . any sentencing guideline

determinations,” we dismiss the appeal.

STANDARD OF REVIEW

We review de novo the validity of an appeal waiver. 

United States v. Charles, 581 F.3d 927, 931 (9th Cir. 2009). 

A waiver of appellate rights “is enforceable if (1) the

language of the waiver encompasses his right to appeal on the

grounds raised, and (2) the waiver is knowingly and

voluntarilymade.” United States v. Jeronimo, 398 F.3d 1149,

1153 (9th Cir. 2005), overruled on other grounds by United

States v. Castillo, 496 F.3d 947, 957 (9th Cir. 2007) (en

banc). To discern whether a waiver is knowing and

voluntary, we must ask “what the defendant reasonably

understood to be the terms of the agreement when he pleaded

guilty.” United States v. De la Fuente, 8 F.3d 1333, 1337

(9th Cir. 1993) (footnote omitted).

DISCUSSION

Defendant argues that the waiver is unenforceable for two

related, but distinct, reasons. First, he argues that the

requirement that he be sentenced “in accordance with” the

plea agreement is ambiguous, such that his waiver was not

knowing and voluntary. Second, he contends that he was not

sentenced “in accordance with” the plea agreement because

his aggravated assault conviction was not a conviction for a

crime of violence.

The requirement that Defendant be sentenced “in

accordance with” the plea agreement is not ambiguous. The

phrase “in accordance with” requires only that the ultimate
UNITED STATES V. MEDINA-CARRASCO 9

sentence fall within the broad range authorized by the plea

agreement.1 Defendant agrees that such an interpretation is

plausible, but he argues that the phrase also could be read to

require that any sentence imposed rest on a correct guidelines

calculation.

We cannot accept Defendant’s alternate interpretation for

two reasons. First, Defendant’s reading would render

meaningless the express waiver of the right to challenge “any

sentencing guideline determinations,” contrary to basic

principles of contract interpretation. See United States v.

Cope, 527 F.3d 944, 949–50 (9th Cir. 2008) (“For the most

1 Defendant asserts that the sentencing grid included in the plea

agreement looks like “some esoteric algebraic algorithim.” To the extent

that he is arguing that the grid is so confusing that it undermined his

knowing consent to the plea agreement, we cannot accept that argument. 

We do not dispute that the typical person unfamiliar with the intricacies

of the federal sentencing guidelines would be confused by the grid at first. 

But, as we have explained, Defendant affirmed that his lawyer had

explained the plea agreement and that Defendant understood its terms and

conditions. Moreover, the magistrate judge explained in general how the

grid worked, and again Defendant said that he understood. Having made

those representations, Defendant cannot now claimthat his waiver was not

knowing and voluntary because he did not understand the grid. Cf. United

States v. Harvey, 484 F.3d 453, 458 (7th Cir. 2007) (“He cannot now

claim that he did not understand the charge. If he had genuinely been

confused, he should have said something to the judge during the Rule 11

colloquy, at a time when the government easily could have corrected the

problem.”).

We do not mean to suggest that there are no problems with the grid

used in the plea agreement in this case; we merely hold that it was not so

inherently confusing that Defendant’s consent could not have been

knowing and voluntary. In drafting plea agreements, we encourage the

government to continue to “seek terms that will convey to each of the

parties, and the court, a clear understanding of the rights and obligations

created.” United States v. Enriquez, 42 F.3d 769, 772 (2d Cir. 1994).
10 UNITED STATES V. MEDINA-CARRASCO

part, we interpret plea agreements using the ordinary rules of

contract interpretation.” (internal quotation marks omitted));

United States v. Schuman, 127 F.3d 815, 817 (9th Cir. 1997)

(per curiam) (rejecting the defendant’s proposed reading of

the plea agreement because “it would render the waiver

meaningless”). Second, to allow an allegedly incorrect

guidelines calculation to render inapplicable a waiver of the

right to appeal sentencing guidelines determinations “would

nullify the waiver based on the very sort of claim it was

intended to waive.” United States v. Smith, 500 F.3d 1206,

1213 (10th Cir. 2007).

Moreover, even if the phrase “in accordance with” the

plea agreement were susceptible to more than one

interpretation, the plea colloquy here eliminated any

ambiguity. Defendant affirmed that he understood that there

was a “broad range” of sentences available under the

agreement and that the district judge could impose a sentence

of between 4 and 87 months’ imprisonment, depending on the

applicable offense level and criminal history category, among

other factors. And, as we have explained, the written plea

agreement specifically waives the right to challenge “any

sentencing guideline determinations.” Together, the written

agreement and the Rule 11 colloquy were sufficient to ensure

(1) that Defendant knew that the judge would be deciding

where Defendant fell within the agreed-upon sentencing grid,

and (2) that Defendant understood he was giving up the right

to challenge that determination.

Defendant’s second contention—that he was not

sentenced “in accordance with” the plea agreement because

the district court’s “crime of violence” determination was

incorrect—is similarly unavailing. We need not reach the

merits of the “crime of violence” question because, regardless
UNITED STATES V. MEDINA-CARRASCO 11

of the correct answer to that question, Defendant was

sentenced “in accordance with” the plea agreement. As we

have explained, because Defendant expresslywaived his right

to challenge sentencing guidelines determinations, a sentence

“in accordance with” the plea agreement need not rest on a

correct guidelines determination. Here, the district court

applied the guidelines range recommend by the PSR, to

which Defendant did not object. Further, Defendant’s lawyer

conceded that Defendant’s conviction was for a “crime of

violence” and that the 16-level enhancement applied. And

the below-guidelines sentence ultimately imposed fell within

the range set out in the sentencing grid. Defendant’s sentence

thus was “in accordance with” the plea agreement.

Defendant agreed to waive his right to appeal, along with

a number of other rights, in exchange for a lower sentence. 

He received the benefit of that bargain; after subtracting three

offense levels for acceptance of responsibility, the district

court imposed a below-guidelines sentence. That he “did not

realize the strength of his potential appellate claims at the

time that he entered into the plea agreement” does not permit

him to invalidate his knowing and voluntary waiver of

appellate rights. United States v. Nguyen, 235 F.3d 1179,

1184 (9th Cir. 2000), abrogated on other grounds by United

States v. Rahman, 642 F.3d 1257, 1259 (9th Cir. 2011). We

will enforce a valid waiver even if the claims that could have

been made on appeal absent that waiver appear meritorious,

because “[t]he whole point of a waiver . . . is the

relinquishment of claims regardless of their merit.” Id.

DISMISSED.
12 UNITED STATES V. MEDINA-CARRASCO

FRIEDMAN, District Judge, dissenting:

Defendant Jose Medina-Carrasco entered into a plea

agreement with the government under which he agreed to

waive his appellate rights “provided [he] receives a sentence

in accordance with th[e] . . . plea agreement.” This court

previously has considered this same (or functionally

equivalent) plea agreement language, from the same United

States Attorney’s Office, in eight unpublished opinions.1

In

at least five of those cases, the court held that this caveat is

ambiguous and thus renders the waiver unenforceable absent

sufficient clarification from the district court or magistrate

judge.2 Because I agree that this ambiguous waiver is

unenforceable, and because I also conclude that the district

court plainly erred in applying a “crime of violence”

1 United States v. Salmeron-Ozuna, 597 F. App’x 454 (9th Cir. 2015)

(unpublished); United States v. Hernandez-Lopez, 594 F. App’x 385 (9th

Cir. 2015) (unpublished); United States v. Banos-Mejia, 588 F. App’x 522

(9th Cir. 2014) (unpublished); United States v. Perez-Mancilla, 573 F.

App’x 615 (9th Cir. 2014) (unpublished); United States v. GonzalesGarcia, 541 F. App’x 764 (9th Cir. 2013) (unpublished); United States v.

Rodriguez, 540 F. App’x 662 (9thCir. 2013) (unpublished); United States

v. Baltazar-Neri, 540 F. App’x 630 (9th Cir. 2013) (unpublished); United

States v. Aguilar-Balbuena, 475 F. App’x 222 (9th Cir. 2012)

(unpublished).

2 Banos-Mejia, 588 F. App’x at 523; Perez-Mancilla, 573 F. App’x at

616; Gonzales-Garcia, 541 F. App’x at 765; Rodriguez, 540 F. App’x at

662; Aguilar-Balbuena, 475 F. App’x at 223.

In a sixth case, Salmeron-Ozuna, the court did not specifically hold

that the caveat was ambiguous, but stated that “[w]e are unpersuaded that

the appeal waiver is ambiguous in light of the clarifying colloquy at the

change of plea hearing.” 597 F. App’x at 454 (emphasis added). In only

one of the eight cases, United States v. Hernandez-Lopez, 594 F. App’x

at 385, did the panel adopt the position taken by the majority in this case.
UNITED STATES V. MEDINA-CARRASCO 13

enhancement in calculating Medina-Carrasco’s sentencing

guideline range, I respectfully dissent.

I. APPEAL WAIVERS

I begin by acknowledging that this court and every other

federal court of appeals to have considered the issue have

held that appeal waivers are valid: If a defendant may waive

his constitutional rights as part of a plea agreement, they

reason, it follows that a defendant may waive statutory rights

to appeal and to collaterally attack a conviction or sentence. 

See, e.g., United States v.Navarro-Botello, 912 F.2d 318, 321

(9th Cir. 1990); United States v. Wiggins, 905 F.2d 51, 53–54

(4th Cir. 1990). Those decisions have been criticized by trial

judges and commentators on a variety of grounds.3 Primary

among them is the reality that giving up the right to trial, to

confront witnesses at trial, and to preserve the privilege

against self-incrimination are all known trial rights that

necessarily are forfeited by the very act of pleading guilty

 

3

See, e.g., United States v. Melancon, 972 F.2d 566, 571–73 (5th Cir.

1992) (Judge Parker, concurring specially); United States v. Johnson,

992 F. Supp. 437, 438–40 (D.D.C. 1997) (Judge Harold Greene); United

States v. Raynor, 989 F. Supp. 43, 44–49 (D.D.C. 1997) (Judge

Friedman); United States v. Perez, 46 F. Supp. 2d 59, 64–72 (D. Mass.

1999) (Judge Gertner), abrogated by United States v. Teeter, 257 F.3d 13

(1st Cir. 2001); United States v. Vanderwerff, No. 12-CR-0069, 2012 WL

2514933, at *5 (D. Colo. June 28, 2012) (Judge Kane), rev’d and

remanded, 788 F.3d 1266 (10th Cir. 2015); Robert K. Calhoun, Waiver of

the Right to Appeal, 23 HASTINGS CONST.L.Q. 127 (1995); Alexandra W.

Reimelt, Note, An Unjust Bargain: Plea Bargains and Waiver of the Right

to Appeal, 51 B.C.L.REV. 871 (2010) ; Nancy J. King, Plea Bargains that

Waive Claims of Ineffective Assistance – Waiving Padilla and Frye, 51

DUQ. L. REV. 647 (2013); Andrew Dean, Note, Challenging Appeal

Waivers, 61BUFF.L.REV. 1191 (2013);KevinBennardo, Post-Sentencing

Appellate Waivers, 48 U. MICH. J. L. REFORM. 347 (2015).
14 UNITED STATES V. MEDINA-CARRASCO

instead of proceeding to trial. The defendant consequently

knows precisely what he or she is giving up in exchange for

the benefits of the guilty plea at the very moment the plea is

entered — a trial and the constitutional rights that accompany

it.

Sentencing, however, does not occur contemporaneously

with the plea and waiver. It is a future event, and the

mistakes from which one might have reason to appeal have

not yet occurred at the time a defendant waives the right to

appeal or collaterally attack the plea or sentencing

proceedings. A defendant cannot know what he or she has

given up by waiving the right to appeal until after the judge

and counsel have reviewed a yet-to-be-prepared presentence

investigation report, after the judge has considered other

information not known to the defendant at the time of the

plea, and after the judge has actually imposed sentence. By

then it is too late, no matter how disproportionate the

sentence or how egregious the procedural or substantive

errors committed by the sentencing judge or the defendant’s

own counsel. It is hard to see how a defendant at the plea

hearing can ever knowingly and intelligently — that is, with

“a full awareness of both the nature of the right[s] being

abandoned and the consequences of the decision to abandon

it,” Moran v. Burbine, 475 U.S. 412, 422 (1986) — waive the

right to appeal or collaterally attack a sentence that has not

yet been imposed. Such prospective waivers in anticipation

of unknown future events are inherently unknowing and

unintelligent.4

4 Nor can appeal waivers be truly voluntary when one contracting party

— the government — has such a great advantage in bargaining power

because the precise charge or charges to be brought and the resulting

advisory Guideline sentencing range are totally up to the prosecutor. It is
UNITED STATES V. MEDINA-CARRASCO 15

Putting these concerns aside, the courts of appeals (as

noted) are unanimous in recognizing the presumptive validity

of appeal waivers. Each one of those courts, however, has

done so with the proviso that such waivers must be rigorously

assessed to assure that they have been entered knowingly,

intelligently, and voluntarily. Furthermore, the courts have

made clear that the question is not one of form but of

substance: Did the defendant in fact knowingly, intelligently,

and voluntarily waive the right to appeal or to collaterally

attack a conviction or sentence — a determination which

must be based upon the specific facts and circumstances

presented by the particular case, including the defendant’s

“background, experience, and conduct.” United States v.

Martinez, 143 F.3d 1266, 1269 (9th Cir. 1998) (quoting

Edmonds v. Arizona, 451 U.S. 477, 482 (1981)). And as with

waivers of constitutional rights, “a heavy burden” rests on the

government to demonstrate by a preponderance of the

evidence that the waiver was voluntary and that the defendant

knowingly and intelligently waived these important statutory

rights. See Berghuis v. Thompkins, 560 U.S. 370, 383–84

(2010); United States v. Garibay, 143 F.3d 534, 536–37 (9th

Cir. 1998); see also United States v. Andis, 333 F.3d 886, 890

(8th Cir. 2002).

II. THIS WAIVER IS UNENFORCEABLE

Under this court’s jurisprudence, Medina-Carrasco’s

“waiver of his appellate rights is enforceable if (1) the

language of the waiver encompasses his right to appeal on the

grounds raised, and (2) the waiver is knowingly[,]

[intelligently,] and voluntarily made.” United States v.

illusory to suggest that the defendant has any real bargaining power in this

context, any free and deliberate choice.
16 UNITED STATES V. MEDINA-CARRASCO

Charles, 581 F.3d 927, 931 (9th Cir. 2009) (quoting United

States v. Jeronimo, 398 F.3d 1149, 1154 (9th Cir. 2005),

overruled on other grounds by United States v. Castillo,

496 F.3d 947, 957 (9th Cir. 2007) (en banc)). The court must

“determine what the defendant reasonably understood to be

the terms of the agreement when he pleaded guilty,” United

States v. De la Fuente, 8 F.3d 1333, 1337 (9th Cir. 1993)

(footnote omitted), and then that he voluntarily and

knowingly waived his rights as he understood them, see

Charles, 581 F.3d at 932 (Because defendant “reasonably

could have believed that he retained his right to appeal his

sentence to the extent that the district court determined he

was a career offender,” “[defendant] did not waive his right

to appeal [that] determination.”). “The drafter of the plea

agreement, typically the government, is responsible for any

lack of clarity such that ambiguities are construed in favor of

the defendant.” Charles, 581 F.3d at 931.

Section IV of the plea agreement here states that MedinaCarrasco waives his right to appeal “provided [he] receives a

sentence in accordance with this fast-track plea agreement.” 

As the majority notes, Medina-Carrasco argues that the “in

accordance with” caveat is susceptible to two interpretations. 

Slip Op. at 8. First, the waiver is effective so long as MedinaCarrasco received a sentence in any of the eighteen different

sentencing ranges listed in the sentencing grid contained in

the plea agreement, because that is what he agreed to. This

is the interpretation adopted by the majority. Slip Op. at 8. 

Or, second, the waiver is effective so long as MedinaCarrasco received a sentence based on a properly calculated

sentencing guideline range, id. at 9, that is, so long as it does

not exceed 87 months. The majority rejects this alternative

interpretation as implausible for two reasons: (1) it would

“render meaningless the express waiver of the right to
UNITED STATES V. MEDINA-CARRASCO 17

challenge ‘any sentencing guideline determinations’ contrary

to basic principles of contract interpretation”; and (2) to allow

an allegedly incorrect guidelines calculation to render a

waiver inapplicable “would nullify the waiver based on the

very sort of claim it was intended to waive.” Slip Op.

at 9–10.5

I disagree with the majority’s view that the second,

alternative interpretation is implausible. In my view, both

interpretations posited by Medina-Carrasco are plausible. 

And if both are plausible, the waiver is ambiguous. It follows

that Medina-Carrasco did not knowingly and intelligently

waive his right to appeal the district court’s determination of

whether his prior conviction qualified as a “crime of

5 The majority’s rejection ofthis alternative interpretation as implausible

is troublesome in light of the fact that a panel of this court seemingly held

the exact opposite in United States v. Baltazar-Neri, 540 F. App’x at 631,

an unpublished opinion that counsel were directed to address in their

briefs by this court’s order of June 18, 2014. In Baltazar-Neri, the court

confronted a functionally equivalent caveat requiring the sentence to be

“consistent with” the plea agreement. Id. Like Medina-Carrasco, the

defendant there challenged a 16-level sentencing enhancementfor a crime

of violence under the same sentencing guideline at issue here. The

government conceded that the enhancement was incorrectly applied

because the defendant had never been convicted of a crime of violence,

but contended that the defendant had waived his right to appeal

nevertheless. Id. The defendant urged the court to adopt the interpretation

advanced by Medina-Carrasco in this case — that his sentence was not

“consistent with” the plea agreement because the sentencing guideline

range was incorrectly calculated — and the court explicitly did so,

presumably considering it plausible. Id. The court said: “The sixteenlevel enhancement is ‘consistent’ with the plea agreement only if [the

defendant] was previously convicted of burglary of a dwelling,” which he

was not, and “conclude[d] that [the defendant] did not unambiguously

waive his right to appeal.” Id.
18 UNITED STATES V. MEDINA-CARRASCO

violence” under U.S.S.G. 2L1.2(b)(1)(A)(ii). See Charles,

581 F.3d at 931–32.

As noted, the majority rejects the alternative

interpretation for two reasons. In my opinion, the first reason

is incorrect because the waiver of the right to appeal “any

sentencing guideline determinations” is not “render[ed]

meaningless” under that alternative interpretation. The basic

principles of contract interpretation invoked by the majority

dictate that the contract “must be read as a whole and every

part interpreted with reference to the whole, with preference

given to reasonable interpretations.” Wapato Heritage,

L.L.C. v. United States, 637 F.3d 1033, 1039 (9th Cir. 2011)

(internal quotation omitted). When read together with the

alternative interpretation of the caveat “in accordance with,”

that portion of the waiver means “any correct sentencing

guideline determinations.” Although it would bar fewer

appeals than the government would prefer, the waiver would

be far from meaningless.

As for the majority’s second reason — that this

interpretation counterintuitively allows appeals on claims

that ordinarily would be waived by plea agreement waivers

— I agree. But the fact that the government almost certainly

did not intend to draft a seemingly self-defeating waiver is

irrelevant. Our inquiry must focus on the literal terms of the

plea agreement, a contract drafted by the government, and

what Medina-Carrasco “reasonably understood to be the

terms of the agreement when he pleaded guilty.” De la

Fuente, 8 F.3d at 1337; see also Charles, 581 F.3d at 931;

United States v. Cope, 527 F.3d 944, 950 (9th Cir. 2008)

(“The drafter of the plea agreement — usually the

government . . . — bears responsibility for any lack of clarity,

such that [a]mbiguities are . . . construed in favor of the
UNITED STATES V. MEDINA-CARRASCO 19

defendant, . . . and the government is ordinarily held to the

literal terms of the plea agreement it made.”) (quoting United

States v. Transfiguracion, 442 F.3d 1222, 1228 (9th Cir.

2006)) (internal quotation marks and citations omitted).

Unlike the majority, I therefore find both interpretations

of the “in accordance with language” plausible. And because

Medina-Carrasco could have reasonably understood the

waiver to mean either of the two plausible interpretations or,

frankly, not understood what he was waiving at all, the plea

agreement was ambiguous and his waiver of appellate rights

was not knowing and intelligent. Absent any clarification

from the magistrate judge that eliminated the ambiguity of the

written agreement, the waiver of appellate rights is

unenforceable. See United States v. Clark, 218 F.3d 1092,

1095 (9th Cir. 2000) (“If . . . a term of a plea agreement is not

clear on its face, we look to the facts of the case to determine

what the parties reasonably understood to be the terms of the

agreement. If, after we have examined the extrinsic evidence,

we still find ambiguity regarding what the parties reasonably

understood to be the terms of the agreement, then the

government ‘ordinarily must bear responsibility for any lack

of clarity.’”) (quoting De la Fuente, 8 F.3d at 1338); United

States v. Baramdyka, 95 F.3d 840, 843 (9th Cir. 1996) (“This

court looks into the circumstances surrounding the entry of

the plea agreement to determine whether the defendant agreed

to its terms knowingly and voluntarily.”).

In that regard, I respectfully disagree with the majority’s

conclusion that, even assuming the “in accordance with”

caveat in the plea agreement was ambiguous — and I think

it is — the plea colloquy saves the waiver. Slip Op. at 10. 

While the magistrate judge asked Medina-Carrasco a number

of questions regarding the plea agreement and his
20 UNITED STATES V. MEDINA-CARRASCO

constitutional and statutory rights, only one concerned the

waiver of his right to appeal: “[D]o you understand that,

according to your written plea agreement, you are giving up

your right to appeal your conviction and sentence?” The

magistrate judge, however, did not explain the parameters of

the waiver or the circumstances in which it would apply. He

failed to clear up or even address the ambiguity as to the

meaning of the phrase “in accordance with.” And the

representative of the same United States Attorney’s Office

that had been admonished by this court on several prior

occasions in similar situations, see supra at 1, failed to urge

him to do so.

Moreover, the single question posed by the magistrate

judge provided incorrect information. Even the majority

acknowledges that Medina-Carrasco did not waive every

issue he might appeal from his conviction and sentence — at

a bare minimum, under the majority’s interpretation, he

reserved the right to appeal from a sentence outside the

ranges listed in the agreement. Slip Op. at 8–9. And despite

the unequivocal language of the plea agreement, he preserved

the right to raise on collateral attack a claim of ineffective

assistance of counsel at the plea or sentencing and certain

other constitutional violations that infected either. See

Washington v. Lampert, 422 F.3d 864, 870–71 (9th Cir. 2005)

(holding that plea agreement that waives right to file federal

habeas petition is unenforceable with respect to ineffective

assistance of counsel claim that challenges voluntariness of

waiver); see also United States v. Adams, 780 F.3d 1182,

1183–84 (D.C. Cir. 2015); United States v. Hahn, 359 F.3d

1315, 1327 (10th Cir. 2004); Andis, 333 F.3d at 891. The

plea colloquy therefore failed to eliminate the ambiguity of

the written plea agreement and to clarify that the caveat

meant only that Medina-Carrasco could appeal if the sentence
UNITED STATES V. MEDINA-CARRASCO 21

was outside the broad 4 to 87 months range of imprisonment

in the agreement. In my view, the waiver of appellate rights

is unenforceable, and I would reach the merits of MedinaCarrasco’s appeal.

There is yet another, separate reason to conclude that

Medina-Carrasco did not understand the consequences of his

plea sufficiently to knowingly and intelligently waive his

right to appeal. Like the majority, I, too, am concerned about

the lack of clarity in the “algebraic algorithm” of the plea

agreement. Slip Op. at 9 n.1. In my view, however, the lack

of clarity is fatal to the validity of the appeal waiver,

independent of the ambiguity addressed above. While

ostensibly labeled a Rule 11(c)(1)(C) plea agreement, the grid

presented in the plea agreement contains a mind-numbing 18

different potential guideline sentencing ranges, reached by

combining three possible offense levels with six possible

criminal history categories, which apparently reflect

reductions for acceptance of responsibility and the fast track

program, without so stating. The plea agreement contains no

explanation as to how the district court would determine

which range or criminal history category would apply. The

potential sentences range from 4 months to 87 months of

imprisonment, depending on what adjustments, offense

characteristics, and prior offenses are counted and whether

Medina-Carrasco was or was not previously convicted of a

crime of violence. The majority states that “the typical

person unfamiliar with the intricacies of the federal

sentencing guidelines would be confused by the grid at first,”

Slip Op. at 9 n.1, but finds comfort in the fact that this

Spanish-speaking defendant affirmed through an interpreter

that his lawyer had explained the plea agreement to him and

that the magistrate judge “explained in general how the grid

worked,” id. In my view, the plea agreement drafted by the
22 UNITED STATES V. MEDINA-CARRASCO

government is unacceptable — certainly I would never accept

a plea based on this document — and the magistrate judge’s

explanation woefully failed to clarify it. Medina-Carrasco’s

consent therefore could not have been knowing and

intelligent.

III. CRIME OF VIOLENCE: THE DISTRICT COURT PLAINLY

ERRED

The district court concluded that Medina-Carrasco’s prior

aggravated assault conviction in Arizona categorically

qualified as a “crime of violence” under Section

2L1.2(b)(1)(A)(ii) of the Federal Sentencing Guidelines and

therefore applied a 16-level enhancement. The definition of

“crime of violence” includes the crime of aggravated assault

under state law or “any other offense that has as an element

the use, attempted use, or threatened use of physical force”

against another. U.S.S.G. § 2L1.2, cmt. n.l; see United States

v. Marcia-Acosta, 780 F.3d 1244, 1248 (9th Cir. 2015). 

Because Medina-Carrasco failed to object to the 16-level

enhancement, this court may only reverse if it finds plain

error.6

6 Although Medina-Carrasco conceded at sentencing that the

enhancement applied, he did not thereby waive his right to challenge the

sentence. There is no evidence that Medina-Carrasco made a tactical

decision not to challenge the probation office’s (incorrect) initial

determination that his prior conviction qualified as a “crime of violence.” 

See United States v. Jimenez, 258 F.3d 1120, 1124 (9th Cir. 2001)

(holding that a defendant who conceded that the PSR correctly applied the

Guidelines did not waive his right to challenge his sentence where there

was no evidence that he considered objecting but for “some tactical or

other reason” rejected the idea); see id. at 1124 (court’s legal

determinations “are not immunized from appellate review simply because

a defendant, present at a hearing where that determination is made,

mistakenly agrees with the court.”).
UNITED STATES V. MEDINA-CARRASCO 23

The government and Medina-Carrasco agree that A.R.S.

§ 13-203(A) is divisible under the “modified categorical

approach” announced by the Supreme Court in Taylor v.

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

United States, 133 S. Ct. 2276, 2283–85 (2013). They also

agree that Medina-Carrasco specifically was convicted under

A.R.S. § 13-203(A)(3), a subsection of the statute which

requires “[k]nowinglytouching another person with the intent

to injure, insult or provoke such person.” The government,

however, contends that subsection (A)(3) is further divisible,

and that Medina-Carrasco was convicted under the “intent to

injure” provision of that subsection. The government is

wrong.

In this case, the jury would not have been instructed to

decide whether it found Medina-Carrasco guilty of touching

with the intent to injure because that is not a separate

statutory element under subsection (A)(3). See Rendon v.

Holder, 764 F.3d 1077, 1086 (9th Cir. 2014) (“Only when

state law requires that in order to convict the defendant the

jury must unanimously agree that he committed a particular

substantive offense contained within the disjunctivelyworded

statute are we able to conclude that the statute contains

alternative elements and not alternative means.”) (emphasis

in original). All that would have been required of the jury

was to determine unanimously whether it found that MedinaCarrasco’s conduct violated subsection (A)(3); some jurors

could have found intent to injure, others intent to insult, and

still others intent to provoke, and still have rendered a

unanimous verdict. Rendon, 764 F.3d at 1085 (“As long as

the defendant’s conduct violates the statute, the jury can

disagree as to how, and a later sentencing court cannot

conclude that the jury in fact agreed on the particular means

of commission.”).
24 UNITED STATES V. MEDINA-CARRASCO

Under Johnson v. United States, 559 U.S. 133, 138–40

(2010), “touching” does not qualify as “the use, attempted

use, or threatened use of physical force,” and MedinaCarrasco’s prior conviction under subsection (A)(3) therefore

does not qualify as a “crime of violence” under Section

2L1.2(b)(1)(A)(ii). Accord United States v. Ossana, 638 F.3d

895, 900 (8th Cir. 2011) (holding that a conviction under

A.R.S. § 13-203(A)(3) “would not qualify as a crime of

violence” because “such contact does not qualify as the use

of physical force because it is not violent force”) (citing

Johnson, 559 U.S. at 138–39). Adding 16 additional offense

levels when there was no crime of violence quadrupled

Medina-Carrasco’s sentencing guideline range from 12 to 18

months of imprisonment to 57 to 71 months of imprisonment. 

This was plain error.

I therefore would reverse the sentence and remand for

resentencing.