United States v. Jacobo Castillo

Therefore, performance. al R.B. was not findings, we thorough and careful SEHO’s prong. IDEA this inappropriate eligible that R.B.’s behav- relief under conclude long over a degree not to marked ior was adversely not affect time and did

period of IV. Therefore, performance. her educational CONCLUSION for IDEA relief un- eligible R.B. not was prong. der this procedural violated the re- District including the IDEA quirements of depres- unhappiness or c. Pervasive of special provider education teacher or sion After the child on the IEP team. review- long history of Acknowledging a ing giving proper the record deference diagnoses, the SEHO nonethe depression find- thorough to the SEHO’s and careful not depressed less that R.B. was concluded ings, qualify we hold that R.B. did not as year school grade her fifth because during she disability” “child with a because did generally that R.B. personnel testified any not meet criteria for a “severe on SEHO also relied happy. The seemed Because R.B. is emotional disturbance.” any docu failure receive District’s relief, ineligible substantively for IDEA (includ diagnosis of depression mentation in the com- procedural hold error until R.B. finished report) the Solomon her IEP team was harmless. position of However, licensed profes grade. the fifth during R.B. AFFIRMED. sionals who examined Solomon, frame—including time 2001-03

Morrison, R.B. diagnosed and Struven—all depression.

with opinion accepted if we

Even rejected the professionals and

licensed de- that R.B. was not finding

SEHO’s during and 2002-03 the 2001-02

pressed would still fail years, appellants school America, UNITED STATES they eligibility IDEA establish Plaintiff-Appellee, depression was prove could not that R.B.’s re- degree.” a marked The Struven “to CASTILLO, Domingo JACOBO persua- found most which SEHO port, Defendant-Appellant. sive, only R.B. had mild concluded that required to es- depression below the level No. 05-30401. disturbance.” tablish a “severe emotional Appeals, States Court testimony of all the heard the SEHO Ninth Circuit. with the various experts and was familiar report. in each methodologies employed Argued and Submitted Therefore, to the SEHO’s thor- we defer En Banc March 2007. analysis expert ough and careful July Filed reports accept the conclusion to a marked depression was not R.B.’s

degree. in Part

Finally, for all the reasons stated

111(B)(2)(b) opinion, depres- R.B.’s adversely her education- affect

sion did Porter,

David M. Federal Public De- fenders, Sacramento, CA, Dawn Reyn- M. olds, Law Offices of M. Reynolds, Dawn Dallas, OR, for the defendant-appellant. Bolton, Jill Office of the United States Attorney, Spokane, WA, for plaintiff- appellee. portion

fects,” must dismiss and “we Reyes- appeal.” (9th Cir.2000); Platero, 1112, 1115 Floyd, States v. also United see Cir.1997) (“Unless (9th appel 202, [the 204 with [Rule conformed plea lant’s] SCHROEDER, M. MARY Before: have ll(a)(2)’s] requirements, we specific Judge, HARRY Circuit Chief Unit appeal.”); to hear her jurisdiction no PREGERSON, STEPHEN 1452, Carrasco, F.2d 786 v. ed States RYMER, REINHARDT, ANN PAMELA Cir.1986) (‘We juris (9th have do not 1453-54 THOMAS, SUSAN P. R. SIDNEY of appellant’s] appeal [the to decide diction WARDLAW, GRABER, KIM McLANE unless motion suppression denial of FLETCHER, RAYMOND A. WILLIAM (foot plea.” a valid conditional entered she GOULD, FISHER, M. RONALD C. hand, omitted)). we other On the note PAEZ, S. MARSHA A. RICHARD aas agreements waiver plea have treated BYBEE, CONSUELO BERZON, S. JAY “does not divest appeal that right to SMITH, D. CALLAHAN, MILAN M. otherwise en it jurisdiction the Court of JR., Judges. Circuit 1081, Doe, 53 F.3d v. States joys,” United by BYBEE; Dissent Judge Opinion (9th Cir.1995), govern “the 1082 Judge CALLAHAN. waiver,” United States can ment waive (9th 1121, 1122 Garcia-Lopez, 309 F.3d v. BYBEE, Judge: Circuit Lopez- v. Cir.2002); States see also United this case in banc review en granted We Cir.) (9th 1173, 1175-77 Armenta, F.3d 400 have we to which question to resolve waiver), cert. as (discussing plea bar have Do we answers: given inconsistent 163 denied, when appeal to hear Ang (2005); v. States United in which guilty plea entered a defendant Cir.2000) (9th lin, 1066 215 F.3d Domingo appeal? right to his he waived waiver); as a bar (discussing of count to one pled guilty Jacobo Castillo 940 F.2d Bolinger, of a United States possession illegal alien being an Cir.1991) (9th guilty that a (noting U.S.C. of 18 480 in violation firearm guilty waiver Notwithstanding express his “an as functions 922(g)(5). § Lewis, convic- appealed Castillo States plea, Jacobo United appeal”); raise the Cir.) failed to (9th government (holding tion. The F.2d to this as a agreement bar or his [the to raise fail[s] “the government when to Jacobo responded instead appeal and oral or at brief waiver] its question A di- merits. on the arguments Castillo’s it”), address decline we argument, lack the appeal panel dismissed vided Cir.1986). F.2d amending 787 v. Jacobo jurisdiction. positions. the two blended have even We (9th Cir.2006), reh’g Castillo, (“The at 1114 Reyes-Platero, See (9th Cir. F.3d 1264 granted, 473 en banc Reyes-Platero argues 2007). unconditionally arguments these waived views of different offer two Our cases implication guilty. pleading have we whether the question not we do is that argument government’s line of In one circumstances. under these ”). jurisdiction.... have have “we cases, held that do have valid hold that a nowWe appeals merits of over deprive de- does constitutional upon pre-waiver based panel remand to the for further pro- While the Defendant waiving cer- ceedings. tain constitutional rights, the Defendant understands the Defendant retains the I right to be assisted through the sentenc- Jacobo Castillo was indicted Novem- any direct appeal of conviction ber 2004 on a count of single being a felon and sentence an attorney, who will be in possession aof firearm in violation of 18 appointed at no cost if the Defendant § U.S.C. 922(g)(5). In February Ja- cannot afford to hire an attorney. The cobo Castillo moved to suppress the fire- Defendant also acknowledges any arm found during an earlier search of his pretrial motions currently pending be- conjunction residence in with investiga- fore the Court are waived. tion into robbery which impli- he was Another provision of the plea agreement cated. Jacobo sought Castillo to suppress concerned his appeal rights: evidence, the arguing that police the failed Appeal Rights: to probable show cause that the firearm The agrees Defendant to waive the used in robbery, the which had occurred right to appeal the sentence if the Court earlier, six months would be located in the imposes a prison term within the guide- house to be searched. The district court line range of 21-27 months if the motion, the denied and Jacobo Castillo en- Court orders said term to run concur- tered plea into a agreement. rently previous with [his sentence] with The plea agreement specified that the a term supervised of release of no longer government would not file additional than years. three charges against him, would recommend a two-level Nowhere departure plea downward does the agreement for accep- refer tance of responsibility, and to a that conditional plea the term under Federal Rule of of imprisonment would run concurrently Criminal Procedure or identify is- with imposed a sentence following a relat- preserved sues At sentencing, ed conviction. In exchange, Jacobo Castil- probation the officer recommended a dif- lo agreed plead to guilty and waive certain ferent criminal history score than gov- the rights. The two relevant provisions of the ernment, which resulted in a proposed plea agreement are as follows: Sentencing Guidelines range of 46 to 57 Waiver Constitutional Rights: of months. The court accepted the Defendant, DOMINGO JACOBO agreement and the criminal history score CASTILLO, by understands that enter- recommended the probation officer and of the Defendant is imposed a sentence of 46 months to run knowingly and voluntarily waiving cer- concurrently with the term Jacobo Castillo tain rights, constitutional including: serving was prior for a Upon conviction. (a). The to a right jury trial on the examining the plea agreement, the court charge; Castillo, told Jacobo “[Y]ou have the right (b). see, to hear and to this court’s determinations.” question witnesses; the Jacobo appealed. Castillo Although his (c). The right to remain silent at sentence exceeded prison the speci- term trial; fied in the agreement, Jacobo Castillo (d). The right trial; to testify at did not appeal his sentence. Instead, he challenged his underlying conviction

(e). The right to compel raising witnesses preindictment the delay and the to testify. district court’s refusal suppress to the fire- “all involving criminal cases to hear courts Inexplicably, in the search. arm seized brief, laws of United against opening offenses Castillo’s to Jacobo response 3231; La § see also Cas- 18 U.S.C. assert Jacobo did not States.” government States, ap- his U.S. bar as a v.mar United agreement tillo’s (1916) (stating addressed that Instead, L.Ed. 526 peal. claims. Castillo’s dis of Jacobo than merits clearer only “nothing can be held that majority dissent, panel all crimes ... has Over trict Cas- hear Jacobo had no authority of the Unit under cognizable appeal: his and dismissed States”). tillo’s has con Finally, Congress ed preserve failure Castillo’s] “[Jacobo appeals the courts on ferred a conditional entering rights appellate final decisions all from “appeals to hear 11(a)(2) deprives us to Rule plea pursuant States.” United courts district of a the merits authority to consider see, 1291; Capital e.g., SEC § 28 U.S.C. Castillo, at 989. claim.” LLC, F.3d Consultants acknowledged judge dissenting Cir.2006) curiam); (per support would our decisions some (9th Cir.), 1138, 1141 cert. Griffin, 440 argued but majority’s position, — 259, U.S.-, 166 denied, 127 S.Ct. (Bybee, Id. at 992 in conflict. cases were (2006). of the absence In 201 L.Ed.2d to agreed rehear J., dissenting). We us deprive would provision that other some to and this issue to resolve case en banc have both jurisdiction, appellate of precedents. inconsistent overrule au congressional power and constitutional hear the instant thorization to II that Federal thought majority panel the fundamental begin with We such a 11 was Procedure Rule of Criminal courts courts are that “federal proposition that majority held panel provision. to empowered ... of limited us of the authori “deprive[d] Rule (1) within are only those cases hear Castil [Jacobo of the merits ty to consider States, as the United of judicial power awas deprivation claim,” that the and Constitution, lo’s] and in defined “not waivable.” defect” and jurisdic “jurisdictional aby them to entrusted have been In a Castillo, at 989. 464 F.3d 13 ChaRles by Congress.” grant tional Court cases, Supreme R. recent of series Wright, Edward Miller & Arthur AlaN court-promulgated whether H. Cooper, Proce has addressed and Practioe Federal ed.1984) (footnote (2d 3522, jurisdic § at 60 of courts strip the lower rules can dure Ir. Ltd. v. Corp. omitted); also Ins. see Sad States v. generally tion. See Guinee, 456 Cir.2007). de des Bauxites Compagnie 932, ler, 935-37 2099, 72 701-02, 694, 102 S.Ct. U.S. Cotton, 535 United States Erec (1982); & Equip. Owen L.Ed.2d 492 1781, 152 627-28, U.S. 372-73, Kroger, U.S. tion Co. were (2002), the defendants L.Ed.2d (1978). We 57 L.Ed.2d and possess to conspiracy charged with stat and power clearly constitutional have in cocaine, superseding but the distribute case. adjudicate this to utory authorization allege amount to failed dictment judicial “[t]he provides III Article enhanced trigger would cocaine that Cases, in Law all to extend Power shall conviction, with Following sentence. this Constitution arising under Equity, a imposed sentence objection, the out States.” of the United Laws [and] maximum, in statutory in excess Ill, Additionally, Con Const, 2.§ art. U.S. and Sixth Fifth of the defendants’ violation district authorized affirmatively gress has rights Apprendi Amendment under 630-31, (omission v. New Id. at 122 S.Ct. 1781 Jersey, original). alterations (2000). Cotton, 535 U.S. at The Court was careful to distinguish 628, 634, 122 S.Ct. 1781. The Fourth Cir between a court’s authori- —its dismissed, cuit holding that the sentencing ty adjudicate to a case—and a pro- court’s court lacked to sentence the by which prescribes the court cedures — defendants for a crime they with which orderly conduct of its business. The were properly charged. 629, 122 Id. at former power set forth the Constitu- S.Ct. 1781. The Supreme Court reversed tion and granted by Congress; latter, in an opinion unanimous holding that the contrast, are promulgated rules by the defect in the indictment did deprive courts themselves to aid in expeditious the court subject-matter jurisdiction. disposition of cases and the efficient man- 630-31, Id. at 122 S.Ct. 1781. The Court agement judicial resources. often We described as the pow “court’s construe these rules mandatory as when case,” er to power hear that “can never properly invoked; failure to observe our be forfeited or waived.” Id. at 122 procedures may being result cases de- S.Ct. 1781. Jurisdiction stands contrast cided on something less than a full consid- procedural rules, such as grand “the eration of the merits of the claim. We do jury right[, can which] be waived.” Id. so out of the need for uniform treatment of explained: parties and in the judicial interests of economy, but not because the rules de- [Djefects in an indictment do not de- prive us of our authority proceed. De- prive a court of power adjudicate its procedural fects in may rules be waived or States, case. Lamar v. United 240 by parties forfeited who fail object prop- 60, 255, U.S. 36 S.Ct. 60 L.Ed. 526 erly,1 whereas defects in subject-mat- (1916),the rejected the claim that ter go to the power inherent court had “the no the court and cannot be waived or forfeit- the indictment does not charge a crime ed. against the 64, United States.” Id. at 36

S.Ct. 255. Justice explained Cotton, Holmes After Ryan, Kontrick v. 540 that a district court “has 443, 456, U.S. 906, 124 S.Ct. 157 L.Ed.2d all cognizable crimes under the authority (2004), 867 the Court held that a federal of the United States ... [and] [t]he subject-matter court’s jurisdiction cannot objection that the indictment does not be expanded based parties’ on the litiga charge a against crime the United tion conduct. Kontriek involved a creditor goes States only to the merits of the who filed an complaint amended objecting 65, case.” Id. at 36 S.Ct. 255. Similar- to the discharge of debts, the debtors’ but ly, Williams, United 341 U.S. did so after the filing deadline for 58, 66, 595, 71 S.Ct. 95 (1951), L.Ed. 747 passed. amendment had 449, Id. at 124 held that a ruling “that the indictment is S.Ct. 906. After the district court entered defective does not affect the summary judgment creditor, for of the trial court to determine the case objected, debtor for the first ap time on presented by the indictment.” peal, that the complaint was untimely 1. relinquishment no, Waiver is "the intentional 1770, or 113 S.Ct. 123 right,” abandonment of a known whereas for- (1993) (internal quotation marks is "the feiture timely failure make the as- omitted). sertion of right.” [that] States Ola-

953 do not create or [procedural rules] ic that therefore, jurisdic- court, lacked that the jurisdiction.”). withdraw federal Id. at summary judgment. enter tion to unanimous- The Court 451, analysis 906. most reiterated this The Court States, rule was bankruptcy time 546 recently held that in Eberhart v. United ly 906, id. at 163 L.Ed.2d jurisdictional, S.Ct. not U.S. curiam). involved had forfeited EberhaH (per the debtor that but earli- objecting of Criminal Procedure limit Federal Rules rely on the 45(b)(2), timing for concern the 458-60,124 The Court which er, 906. S.Ct. at id. at 405. S.Ct. filing has new trial motions. “jurisdictional” label noted fil grounds for raised The defendant had loosely and that applied been prescribed after the a new trial motion if courts be facilitated [cjlarity would passed, had but deadline “jurisdiction- the label used litigants object to the defendant’s actions failed to rules, but claim-processing for al” not heard on Id. until the case was delineating only prescriptions opinion, unanimous 404. In another jurisdic- (subject-matter cases classes of Bankrupt if the held that Supreme Court tion) jurisdic- (personal persons and the “nonju- Kontrick were cy Rules at issue in tion) adjudicatory falling within court’s rules,” nearly claim-processing risdictional authority. the Federal Rules provisions of identical jurisdic not be could Procedure Criminal Applying this S.Ct. Id. at courts must Id. at 405. “[District tional. distinction, that Feder- the Court observed limits of the Rules the clear observe 4004(a), (b), and Bankruptcy al Rules they proper when are Procedure Criminal timing for 9006(b)(3), govern the which reasoned, invoked,” but “[t]his the Court ly court’s not affect the complaint, did filing a limits like those mean that does not Id. The Court jurisdiction. subject-matter they are forfeitable when Rule 33 are not deter- may “[o]nly Congress noted at 406.2 Id. properly invoked.” subject-matter a lower federal court’s mine a similar conclusion recently reached and We id. at jurisdiction,” Rule of Appel- Federal determining timing governing sections 4(b) forfeitable, nonju- ais the late Procedure in found filing complaints were Sadler, rule. claim-processing risdictional promulgat- are Rules—which Bankruptcy Sadler, we ob- In at 939-40. in the U.S. by the Court—and ed for requirements timing the for- served Code, were provisions the timeliness in the grounded were appeals criminal and did not rules claim-processing feitable and in statute than Rules rather at Federal jurisdiction, id. subject matter affect ju- by created the rules “[procedural 906; Kroger, 437 453-54, see also 124 S.Ct. scope expand the (“[I]t shrink or diciary cannot axiomat- is at 98 S.Ct. 2396 U.S. period notice-of-appeal the can extend courts past Term in this Court’s decision 2. The - -, 2107(c), Russell, § limitation U.S.C.] [28 U.S. in Bowles (2007), not affect 96 does claim-processing 168 L.Ed.2d rule.... simple than a more Bowles, Supreme Court the analysis. prosecuted this in been appeal has not an [W]hen "ex- court could whether a district addressed directed, time within the limited the manner beyond filing appeal an for party’s time tend Congress, it must be dismissed by the acts of Id. at 2361. period allowed statute.” the (inter- jurisdiction.” Id. at 2366 want of Distinguish- not. held that it could omitted). citation quotation and marks nal Eberhart, ex- the Court ing Kontrick and from court are different Statutory time limits specifically Congress plained that ”[b]ecause at rules. See id. 2363. by which district the amount time limited (cit- jurisdiction.” of federal Id. at 936-37 Castillo’s argues and now Kontrick, 540 U.S. at that, subject-matter because we lack juris- 906). ultimately We dismissed appeal, the diction, we must dismiss regardless of however, because we found that gov- properly whether it raised objection.3 ernment had properly the untimeli- raised Nothing Rule 11 ju affects our argument, ness and under the rules we risdiction to hear Jacobo Castillo’s required were to dismiss. Id. 940-42. discussed, As previously only Congress can Reading these together, cases confer or divest the lower federal courts of conclude that our procedural rules do not subject-matter jurisdiction. jurisdic Our expand or jurisdiction contract and grounded tion is in Article III that the action or parties inaction of nei statutes, not in the Federal promul Rules jurisdiction ther confers nor deprives us of gated by Supreme Court under the power adjudicate a case. In the Act, Rules Enabling §§ 28 U.S.C. 2071- colorful Judge words Sirica: “When it 2077. grants That Act pow Court the comes to courts, of the federal prescribe er “to general rules of practice truly, to paraphrase [Sjcripture, procedure” “[sjuch provided that rules Congress giveth, and Congress taketh ... not abridge, enlarge modify any or Comm, away.” Select Senate on Presiden right.” substantive 2072(a), § 28 U.S.C. tial Campaign Nixon, Activities v. 366 (b). may Those rules not expand or dimin (D.D.C.1973). F.Supp. 55 & n. 6 We ish the conferred by Congress. turn to whether anything in Rule 11 alters See Co., Venner Ry. v. Great N. analysis. 52 L.Ed. 666 (“The jurisdiction of the circuit court is Ill prescribed by laws enacted Congress in In general, a defendant who enters pursuance Constitution[,] and this into a agreement waives his its rules power has no to increase appeal his conviction. Lopez-Armenta, or diminish the created.”); thus 1175; 400 F.3d at Reyes-Platero, 224 F.3d Standish Co., v. Gold Creek Mining at 1115. Federal Rule of Criminal Proce (“It Cir.1937) is funda dure permits a defendant “re- mental that rule of court cannot enlarge in writing servfe] the right to have an or restrict given by a stat appellate court review an adverse determi ute.”). nation of specified pretrial motion.” Or The boundaries of our subject matter dinarily, if an appellant does not follow this jurisdiction are § found 18 U.S.C. process, enters unconditional plea and § U.S.C. These sections re- still raises such issues on appeal, gov spectively limit a district adjudi- to ernment objects and the court dismisses cating See, the federal offenses appellate e.g., Lopez-Armenta, 400 1175; courts to reviewing F.3d at “final Reyes-Platero, decisions” of the 224 F.3d at 1114; district United Nunez, provisions States v. courts. These do 223 F.3d 956, (9th 958-59 Cir.2000); plea agreements discuss Floyd, possible or their 108 203; F.3d at Cortez, United jurisdiction. States effects on v. Similarly, 973 we find 764, Cir.1992). 766 Here, no how evidence in Rule 11 itself or even in the ever, government the object failed to advisory committee’s notes suggesting a 3. We do not decide 11(a). whether Jacobo Castillo to Rule entered into a valid plea pursuant conditional

955 (1973), and Menna v. New con the government’s statutory basis 241, York, 61, 46 L.Ed.2d 423 S.Ct. any way in U.S. 96 affects Rule that the tention (1975) curiam), its support (per it Although the court.4 195 of the jurisdiction that, compliance with Rules absent Federal assertion of the that some is true 11(a)(2), a entry guilty plea of a is com the requirements Rule jurisdictional restate see, statute, the review of most jurisdictional or bar to by the Constitution pelled the (restating Jaco P. 18 constitutional violations. Fed. R. Crim. antecedent e.g., III, Castillo, 2 and at 989-90. We do not Article section of bo requirements jurisdiction. that the Amendment cases to limit our the read these Sixth in which district habeas claim from a crime involved a prosecute Tollett App. committed); R. ground on the seeking offense was relief prisoner state Fed. 4(a)(1)(A) (restating 28 U.S.C. system had been P. that African-Americans 2107(a)’s of filing notices 30-day limit on grand jury § that atically excluded from jurisdictional requirements 259, any appeal), at 93 him. 411 U.S. S.Ct. had indicted of the by virtue rules in those exist majority found cited Tollett for panel 1602. “ statutes, not the rules entry guilty Constitution ‘a of proposition 11(a)(2) nor the Neither Rule themselves. the chain of plea represents break any men make sentences, purposes appeal are also silent is final for the a district court and jurisdiction over convictions the courts’ about As discussed under section appeal 1291." agreement. Addi- through plea a text, judgment obtained question that a is no the there governs § which tionally, 18 U.S.C. judgment. following plea a final a entered Federal to the pleas, simply refers the reader Criminal Procedure. Rules of view, these cases address the preclusive lishing subject jurisdiction matter under 28 given plea to be the agreement, not 1291,” § U.S.C. id. at 1320.7 effect jurisdiction the of the court. Caruthers, In United 458 F.3d At recently least four other circuits have — Cir.), denied, 471-72 cert. plea addressed a or plea agree- whether U.S.-, 166 L.Ed.2d 582 ment appellate jurisdiction. affects our All (2006), the Sixth Circuit considered wheth have that it does concluded not.6 Unit- er the defendant’s plea, which in Hahn, ed States v. 359 F.3d waiver, cluded an appellate left the court (10th Cir.2004) (en banc) curiam), (per the jurisdiction without to hear the appeal. rejected Tenth government’s Circuit Although resolving the case on different argument “that entry of an enforceable grounds, the Sixth Circuit approvingly cit appellate moot, waiver renders case [the] ed the Tenth opinion Circuit’s in Hahn as thus leaving requi- [the court] without the having powerful “articulated reasons for site controversy case or necessary for sub- concluding that even when val defendants ject jurisdiction matter under Article III idly waive appeals, their the courts of ap of the Federal Constitution.” The en banc peal do jurisdiction indeed have under “[r]egardless reasoned that (28 both the relevant statutes U.S.C. phrase employed, [the] case is not moot § 3742(a)(1)) § 1291 and 18 U.S.C. and because we power have the grant a Article III.” n. Id. legally cognizable remedy requested by a The Fifth Circuit took party namely, voiding the same plea ap- agree- — proach in Story, ment.” Id. United States v. at 1323. The court held that it (5th Cir.2006), had 230-31 statutory holding “both and that an constitutional sub- ject appellate plea matter in a jurisdiction agreement waiver appeals over does when not deprive criminal appeals jurisdic- defendant has court of appel- waived his late tion. rights in an In a situation similar plea agree- enforceable to the case us, ment.” Id. at 1324. It before had constitutional failed to enforce authority the appellate under Article III because waiver the defendant’s “ availability partial plea of even a remedy agreement by ‘is the issue in raising sufficient prevent any from of its being appellate case briefs. Id. at 231. moot,”’ id. at 1323 (quoting The Fifth Calderon v. jurisdic- Circuit held that it had Moore, tion to hear “[t]he dis- curiam)), (per trict entry court’s of [the defendant’s] sen- the district entry court’s of a sentence tence is a § final decision and 1291 confers order, “constitutes a final thereby subject estab- matter upon ap- [the panel majority 6. The cited United States v. 7. The dissent would find that Jacobo Castil- Rogers, (7th Cir.2004), 387 F.3d 925 for the lo's appeal, yet colleague mooted his proposition that an "unconditional creat- concedes have to deter- jurisdictional ed a nonwaivable appel- bar to mine whether Castillo's was en- Castillo, late review.” Jacobo 464 F.3d at tered knowingly into voluntarily, whether 990. We Rogers do not read standing as he entered a conditional under Rule Rather, proposition. Rogers holds that "a 11(a)(2) any preserved to decide preserve defendant’s failure pre-trial mo- plea. Dissenting conditional Op. at tion for review under Rule constitutes 960 n. 1. If we have to determine (em- a waiver of the issue.” 387 F.3d at 933 questions, why, these it is not clear under the added); phasis (holding see also id. that be- dissent’s analysis, we lack to de- cause the defendant entered into an uncondi- termine preclusive effect plea, waiver. tional he "waived to have [the] claim”). court review his Fourth Amendment give to preclusive The appeal. did appeal waiver Id. courts].” peals effect may depend because on the plea agreement the strip the court under are construed agreements plea and the circumstances “plea nature of the party- law” and “[a] of contract principles attention, brought it to our issues which is provision a contract may waive express opinion do not on which we waiver appellate Id. The to it.” beneficial here. “is government, clearly benefits govern- extent that to the

enforceable IV provision.... waiver invokes the ment adjudicate to We have objection government’s the absence appeal. prior To the extent our decisions based on appeal defendant’s] to [the otherwise, they are overruled. suggest binding waiver, the waiver is not appeal the merits of express opinion no on We has waived the claims, including whether Jacobo Castillo’s pro- Fifth then Id. The Circuit issue.” into a valid conditional he entered Id. appeal. of the to the merits ceeded intelligent or an under Rule Gwinnett, Finally, in plea. We vacate knowing unconditional (3d Cir.2007), a defen- at 464 F.3d panel’s opinion, reported plea agreement entered into a dant panel to the remand the case right appeal. her which she waived consistent with this proceedings further that, despite the concluded Third Circuit opinion. it plea, to the REMANDED VACATED AND subject matter over retains three-judge panel. has by a defendant who appeal It could not appellate waiver. signed an ' CALLAHAN, dissenting: Judge, Circuit all, After a sentence otherwise. be constitutionally impermissible based on I race, criteria, as or a sentence such in this case is whether precise issue statutory maximum sen- excess pre-plea over this court has crime, can be tence for the defendant’s a conviction following claims constitutional even if the defen- challenged appeal on plea. an unconditional pursuant waiver of his dant executed blanket By entering that we have an uncon- rights. It follows is no. appeal The answer jurisdiction over subject whereby [such matter a defendant guilty plea ditional notwithstanding her defendant’s] guilt, he removes admits his factual Nonetheless, we will case, waiver of rendering from his guilt issue jurisdiction to review not exercise challenges that do not any pre-plea moot appeal if we defendant’s] of [a the merits it- the admission validity implicate knowingly and volun- conclude that she juris- Article III therefore lack self. We appeal unless tarily waived her constitutional pre-plea diction over miscarriage of work a the result would a case or contro- the absence of because of justice. Soc’y v. Iron Arrow Honor versy. See (citation quotation and internal Id. Heckler, 464 U.S. omitted). Inc.,

marks (1983); Jafco, Liner L.Ed.2d 58 306 n. circuits. with our sister agree We (“Our jurisdic- lack of a defendant enters Regardless of whether from the moot cases derives to review tion plea or an unconditional into a conditional Article III of Constitu- requirement of hear the jurisdiction to plea, we retain judicial under tion which exercise of crimination the selection of the grand power depends upon 266, of a jury.” existence Id. at 93 S.Ct. 1602. The Burrell, or controversy.”); case In re 415 Court reasoned that: (9th Cir.2005) 994, (“If the con- plea guilty represents [A] break moot, troversy is both the appel- trial and chain of events which preceded has it in subject jurisdiction, courts lack late matter process. the criminal When a criminal ‘power and the concomitant to declare the solemnly defendant has admitted in by deciding law’ on claims the merits.” open court that he is in fact guilty (citations omitted)). I Accordingly, re- offense with which he is charged, he spectfully dissent. may independent raise thereafter three-judge panel majority The relating was cor deprivation to the by recognizing rect that this gov case is constitutional rights that occurred prior Henderson, by erned Tollett v. 411 U.S. entry to the guilty plea. may He 258, 1602, (1973), 36 L.Ed.2d 235 only attack voluntary intelligent York, 61, Menna v. New guilty character of the plea[.] (1975). 241, 46 L.Ed.2d 195 In Tol added). Id. at (emphasis S.Ct. 1602 lett, the pleaded guilty defendant in state rejected Court also the lower grand jury court to a indictment for first court’s application of the “waiver” doc- degree murder and was sentenced to a 99- trine: year prison term. 411 U.S. at If the issue were to be solely cast S.Ct. 1602. He sought federal habeas re “waiver,” terms of the Court of Appeals lief grounds on the that African Americans was undoubtedly just correct .... But systematically “were excluded from ... guilty as the pleas in the Brady trilogy grand jury” service. Id. at were found foreclose direct inquiry 1602. The Sixth Circuit focused on into the merits of claimed antecedent respondent’s object “whether failure to there, constitutional violations we con- the indictment provided within the time by clude respondent’s guilty plea here law [state] constituted a waiver alike independent forecloses inquiry into right Fourteenth Amendment to be indict the claim of discrimination in the selec- by ed a constitutionally grand selected grand tion of the jury. granted jury,” relief because the de Id. 93 S.Ct. 1602. Tollett makes fendant demonstrated that he did not clear that a guilty plea “forecloses inde- waive his to a grand constitutional pendent into inquiry” “claimed jury. 259-60, Id. at antecedent 93 S.Ct. 1602. The violations,” constitutional Supreme by of a granted virtue peti warden’s waiver, but tion for because an certiorari, a writ of unconditional guilty framing the issue breaks the chain as “whether a of events in a prisoner, plead state crimi- nal guilty counsel, proceeding. with the advice of unconditional may obtain any later moots through release federal claims of pre-plea habeas constitu- corpus providing only tional that the indict violations that do not affect the vol- pleaded ment to which he untary was returned and intelligent nature the guilty an unconstitutionally grand jury.” selected guilt admission of un- Id. at 93 S.Ct. 1602. alleged disturbed such infirmaries. Supreme Menna explained Court answered further that the guilty question negative, “waiver,” in the holding “that is not a re- but guilt removes spondent’s guilty plea ... here forecloses issues from the case. 423 U.S. at 62 n. independent inquiry into the claim of dis- 96 S.Ct. 241. Menna involved a defendant a guilty plea pursuant plea new charges after the tional guilty to pleaded who to dismiss for his motion The reasoned that “a vol- bargain. court denied Court state Jeopardy Double Clause. of the intelligent plea guilty violation of made untary and appellate 241. The state at 96 S.Ct. Id. ad- by person, an accused who has been conviction, declining to affirmed the counsel, by competent may not be vised jeopardy double the defendant’s address collaterally only It is when attacked.... reversed, Supreme Court argument. plea the the consensual character of is one of that the issue was not explaining a question validity into that the of called right: of a constitutional “waiver” may impaired.” Id. at 508- guilty plea be is that a counseled of point [Tollett ] held that 104 S.Ct. 2543. Court of factual is an admission guilty of in- the defendant’s was not because that, voluntary where guilt so reliable by prosecutor’s the withdrawn offer duced validly removes intelligent, quite it and allege the defendant did not ineffec- from the case. guilt the issue of factual counsel, guilty plea the tive assistance cases, a guilt factual is sufficient In most for voluntariness “fully satisfied the test imposition pun- basis for the State’s at intelligence.” Id. S.Ct. therefore, A sim- guilty plea, ishment. Therefore, the defendant could not those constitu- ply renders irrelevant by challenge alleging his conviction then logically inconsistent tional violations not pro- offer violated due that withdrawn factual with the valid establishment 510-11, at 104 S.Ct. 2543. cess. Id. way not stand guilt and which do validly guilt if factual is of conviction II established. challenges the On Jacobo Castillo (emphasis n.

Id. added). sup- motion to that district court’s denial of his ultimately held The Court claim Jeopardy Double of the the defendant’s evidence seized violation press guilty plea was not barred Supreme Fourth Amendment. The may not con- claim is that the State “the that Fourth expressly has declared validly his petitioner no matter how vict not affect the Amendment violations do is established.” Id. Menna guilt factual conviction. validity guilty plea of the or re- guilty plea by that the demonstrates — Prosise, Haring v. 462 U.S. See guilt issue of factual from moving the 2368, 76 L.Ed.2d 595 con- rendering pre-plea irrelevant case and (“[W]hen pursu- a defendant is convicted implicate that do not stitutional violations trial, than a plea rather guilty ant to his guilty plea necessarily validity — that cannot be validity conviction controversy nature of destroys the case or Amendment alleged Fourth affected proceeding. of a criminal guilt phase not the conviction does violation because Menna, to Tollett and Subsequent may that any way on the evidence rest a that review of Supreme Court clarified seized.”). Because improperly have been voluntary plea is confined to the implicate of evidence does the seizure itself. intelligent nature of under Tollett guilty plea, Jacobo Castillo’s Johnson, 504, 104 Mabry guilty plea Castillo’s and Menna Jacobo (1984), Su- claim moot. appellate rendered this a defen- considered whether preme Court alleges pre- also that Castillo offer created acceptance dant’s process his due delay violated indictment enforced, the offer after right to have However, court has held rights. the offer and the de- prosecutor withdrew trial “is to right speedy to a the accused’s entered an uncondi- subsequently fendant guarantee to a fair trial [his] the court lacks substantially prejudiced either consider a pre-plea suppress motion to evi- pr[e]- post-accusation delays.... or If dence when there was no valid conditional guilt validly can be such viola- established plea). While these cases describe the tions are not logically inconsistent there- “waiver,” guilty plea as a all but Carrasco O’Donnell, with.” United States v. in support also cite to Tollett of their hold- (9th Cir.1976) 1233, (superseded ings that this jurisdiction court lacks over by grounds). pre- rule on other Because pre-plea constitutional claims. Cf. delay indictment is one the “constitu- Lopez-Armenta, States v. 400 F.3d 1173 logically tional violations not inconsistent (9th Cir.2005) (relying on Tollett and dis- with the valid establishment of factual missing pre-plea claims describing without guilt” Menna, described Jacobo Castillo jurisdictional, dismissal as un- describing also “rendered irrelevant” this claim waiver). guilty conditional plea as a an entering guilty plea. unconditional Be- our precedent While reaches the correct cause appeal both issues advanced on fall result, we have used the term “waiver” within independent Tollett’s foreclosure of loosely, causing sight us to lose of the inquiry, appeal presents Jacobo Castillo’s underpinnings in guilty Tollett2 A plea Therefore, no controversy. case or clearly waives a right defendant’s to a jurisdiction lacks to hear Jacobo trial, right witnesses, to cross-examine appeal.1 Castillo’s right to remain silent. But the removal of pertaining issues to the lawfulness pre-

Ill plea governmental conduct from a criminal correctly addition to applying Su proceeding does not stem from the waiver preme precedent, the three-judge rights. these pre-plea removal of majority opinion was consistent with Ninth constitutional issues from a pro criminal authority Circuit because we have re ceeding stems from a defendant’s admis peatedly that an guilty held unconditional past sion of conduct. It is the admission of plea deprives this court of guilt rights his waiver of trial —not hear —that pre-plea claims error. See United any moots pre-plea challenges to his con Reyes-Platero, States v. 224 F.3d 1112 viction validity because the of the convic (dismissing appeal of guilty unconditional tion voluntary rests on the admission of conviction for lack of guilt, any not on pre-plea governmental where defendant alleged pre-plea treaty Prosise, conduct. 319, 321, See defect); 462 U.S. at Floyd, United States v. 108 F.3d (9th Cir.1997) 103 S.Ct. (explaining that a guilty (dismissing appeal of pre-plea suppression denial of is both an past motion for admission of conduct jurisdiction); lack of United States v. and a waiver of rights, Car constitutional trial rasco, (9th Cir.1986) (hold- 786 F.2d 1452 and that recognized Tollett a guilty recognize I any that we have preserved by to de- procedure. See termine whether guilty plea Carrasco, Jacobo Castillo's 1452, United States v. 786 F.2d knowingly was voluntarily, entered (9th Cir.1986). 1453-54 remedy that the unknowing for an or involun- tary plea would be plea. withdrawal of the 2. The Seventh Circuit has suffered from the States, See Machibroda v. United 368 U.S. problem, incorrectly same using the term (1962). 7 L.Ed.2d 473 I "waiver” to describe the effect of a defen- recognize also that we have guilty plea appel- dant's unconditional on its determine whether Jacobo Castillo entered a jurisdiction. late Rogers, See United States v. guilty plea pursuant conditional to Federal (7th Cir.2004). 387 F.3d 925 Rule of Criminal Procedure and over Indeed, validity plea agreement of a 16. not undermined con plea is violation because the right Fourth Amendment tains a to appeal waiver can evidence); not rest on seized plea does encompass a broader set issues than Broce, 488 U.S. United States implicated by those unconditional (1989) (ex 102 L.Ed.2d 927 Michlin, plea. Compare United States v. that a plaining guilty- valid does (affirming conviction be potential the conscious waiver of involve plea agreement cause waived the .to defenses). claim) jeopardy double with Menna 96 S.Ct. 241 (overturning majority distinguishes The en banc conviction because the “addressing] Tollett and Menna as defendant’s uncon preclusive given guilty plea effect to be ditional did not foreclose his claim). agreement,” [addressing] ju- and “not But, jeopardy double absent the of the court.” There is evi- 11(a)(2) risdiction inclusion of a Rule conditional plea agreement dence of a in Tollett be- plea, plea agreement by a itself does not “agreed- cause the noted that an undermine the import of Tollett and Men upon imposed.” sentence was 411 U.S. na, even if it language includes waiver holding 93 S.Ct. 1602. But the in pertaining pre-plea to issues. This is be nothing Tollett had to do with the cause a right defendant cannot waive a exclusively it agreement; rather focused exist, that why does not and this is guilt. admission of The on the —the plea agreement bearing this case has no plea agreement of a is em- irrelevance today. on the issue we address Menna, where there was no phasized plea agreement indication that a even ex- IV dismissing isted. Tollett as Instead agree majority I with the en that banc clarify that controlling, we should a “only can Congress confer or divest the guilty plea deprives valid unconditional subject ju lower federal courts matter this court of to consider ante- However, disagree I that risdiction.” cedent logically errors “not inconsistent three-judge panel majority thought guilt of factual with the establishment 11 deprived Rule us of over way and which do not stand in the three-judge majority this case. The mere guilt validly conviction if factual is estab- ly recognized that case did involve this Menna, lished.” 423 U.S. at 62 n. 96 plea. a conditional United States v. Jaco (9th Castillo, bo 464 F.3d Cir. three-judge panel majority The dis- 2006), reh’g granted, en banc 473 F.3d appeal, relying missed Castillo’s on Jacobo (9th Cir.2007). majori The en banc precedent recognizes our circuit ty’s of Rule 11 has no labored discussion jurisdictional implications guilty plea. of a import scope over the of our majority properly distinguished Unit- guilty plea. following an unconditional Garcia-Lopez, v. 309 F.3d 1121 ed States prec Nor does it undermine Tollett or our (9th Cir.2002), a case involved edent. right appeal contractual waiver of the majority mark The en banc misses the plea agree- sentence contained in a written by focusing plea agreement. on the Reyes-Platero, recognized ment. Under only relevant to the extent agreement is applies only pre- that the rule in Tollett weighs that it on the threshold issues of plea challenges and does not affect our knowing whether Jacobo Castillo entered “occurring over error after the voluntary and whether he en- entry guilty plea.” plea, of a F.3d at 1115— and Cir.1996) plea pursuant (citing City tered a conditional to Rule Eberle v. Ana- 11(a)(2). plea agreement may (9th Cir.1990) also heim, While 901 F.2d a defendant con- be relevant to whether (deeming issue waived when raised for the tractually appeal post- his waived brief)). reply first time Alternative- issues, decisions, sentencing such as ly, I deny would his claim on the merits present this concern is not here because plea agreement because the does not mis- any post- not advance Jacobo Castillo does represent appellate rights. Jacobo Garcia-Lopez, on See appeal. Castillo’s contention that he entered a con- (explaining at 1122-23 that the guilty plea ditional belied also can the contractual ap- waive record. Because Jacobo Castillo failed to peal plea agreement in a waiver contained preserve through his claims a Rule allowing sentencing appeal). court to hear Tollett, Menna, plea, conditional under cases cited the en out-of-circuit precedent, circuit must be majority point. banc not on also are Unit jurisdiction. By dismissed for lack of (10th Hahn, ed States v. 359 F.3d 1315 indictment, pleading guilty to the Cir.2004), Story, United States 439 F.3d Castillo rendered irrelevant and thereby (5th Cir.2006), United States v. Ca mooted the claims that he seeks to ad- ruthers, Cir.2006), 458 F.3d 459 vance on Gwinnett, United States 483 F.3d 200 (3d Cir.2007), that, sentencing appeals are Garcia-Lopez, clearly implicate

like provisions respec waiver of their plea agreements.3

tive These cases do not

implicate support Tollett or the exercise of

jurisdiction over Castillo’s pre-plea are, however, They

claims. consistent understanding

with our rule applies only

Tollett pre-plea challenges

and does not affect our over “occurring entry guilty

error after the of a plea.” Reyes-Platero, See 224 F.3d at In re VERITAS COR- SOFTWARE PORATION SECURITIES LITIGATION.

V Contrary approach taken Petrone, Richard J. on behalf of himself majority, en banc I would address Jacobo similarly situated, and others Castillo’s threshold claims that his Food and Commercial Workers Union (1) knowing was not voluntary, and Employees Local 880-Retail Food conditional, disposing was before Fund, Joint Pension Construction In this appeal. I would hold that Jacobo dustry Carpenters Joint Pension challenge Castillo waived his to the know- Nevada, Trust for Southern Hawaii ing voluntary nature of his Fund, Electricians Pension and Ha failing argument to raise this open- Annuity Fund, or waii Electricians supplemental opening brief. See INS, Bazuaye Plaintiffs-Appellees, 3. The defendant in Caruthers was also able to tion because he entered a conditional challenge suppression the denial of his mo- under Rule 11. notes advisory committee’s it in the crimi preceded has events which juris statutory or of a constitutional tion guilty entering process.... nal [After only apparent requirement. dictional raise may not thereafter plea, a defendant] is that we re requirement jurisdictional relating depriva to the independent district “final decision” view rights that occurred tion of constitutional ” an court, and it is uncontroversial guilty plea.’ entry of the prior to the a “final deci agreement is accepted plea Castillo, (quoting F.3d at 989 464 court.5 appellate reviewable sion” 1602). 267, Similarly, U.S. 169, States, 375 U.S. Corey v. United See Menna, that “[w]here held the Court 298, 174, 11 L.Ed.2d 229 84 S.Ct. by the United precluded the State is ... (“Final case in a criminal judgment haling a from defen Constitution States is The sentence sentence. means charge, federal law on a into court dant omitted)); (internal quotations judgment.” charge on that a conviction requires 882, Moskow, 588 F.2d v. if conviction was aside even be set Cir.1978) (“A (3d judgment sentence plea of a counseled pursuant entered' is the sentence final order whether is a 241. The 96 S.Ct. 423 U.S. at guilty.” after the jury or after a verdict imposed entry of a clarified that see also Collier entry guilty plea.”); of a those irrelevant con “simply renders (9th Cir.2005), 1279, 1290 Bayer, 408 F.3d logically inconsis violations stitutional denied, 1013, 126 S.Ct. 547 U.S. cert. of factual the valid tent with establishment (2006). 164 L.Ed.2d way stand which do not guilt and conviction, validly estab guilt if factual on Tollett majority relied panel 241. In Id. at 63 n. lished.” Henderson, 2072(c) provides that Title 28 5. Section Title which and 3742 of Sections ruling "may when a procedure define appeals the United States govern criminal rules

Case Details

Case Name: United States v. Jacobo Castillo

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jul 25, 2007

Citation: 496 F.3d 947

Docket Number: 05-30401

Court Abbreviation: 9th Cir.