UNITED STATES оf 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
United States Court of Appeals, Ninth Circuit
December 2, 2015
1205
Argued and Submitted July 6, 2015.
NOTICE
Effective April 2, 2004 the Housing Authority lowered the payment standards used to determine your portion of the rent. We will not apply these lower payment standards until your next regular reexamination. If you move, however, these new lower payment standards will apply to your next unit.
PAYMENT STANDARDS and TENANT-BASED SHELTER PLUS CARE PAYMENT STANDARDS EFFECTIVE APRIL 2, 2004
| Bedroom Size | Payment Standard |
|---|---|
| Mobile H. Space | $463 |
| SRO | $505 |
| 0 | $674 |
| 1 | $807 |
| 2 | $1,021 |
| 3 | $1,378 |
| 4 | $1,646 |
| 5 | $1,892 |
| 6 | $2,139 |
| 7 | $2,386. |
Regardless of its location, the unit‘s rent can never be higher than the comparable rents determined by the Housing Authority.
Before: SUSAN P. GRABER and PAUL J. WATFORD, Circuit Judges, and PAUL L. FRIEDMAN,* District Judge.
Opinion by Judge GRABER; Dissent by Judge FRIEDMAN.
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.
* The Honorable Paul L. Friedman, United States District Judge for the District of Columbia, sitting by designation.
FACTUAL AND PROCEDURAL HISTORY
A federal grand jury indicted Defendant on one count of illegal reentry after deportation, in violation of
The plea agreement also contained a section titled “WAIVER OF DEFENSES AND APPEAL RIGHTS,” 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 determined and any sentencing guideline determinations—and includes, but not limited to, any appeals under 18
U.S.C. § 3742 (sentencing appeals), any motions under28 U.S.C. §§ 2241 and2255 (habeas petitions), and any right to file a motion for modification of sentence, including under18 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
THE COURT: And Mr. Carrasco, you and the Government, with the help of Mr. Flores, have entered into an agreement which, 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 сourt 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?
THE DEFENDANT: Yes, Judge.
Defendant also affirmed that he understood that he was giving up his right to аppeal or collaterally attack his conviction and his sentence.
The Presentence 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 rеquested 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, oth
The district court sentenced Defendant to a below-guidelines 55 months of imprisonmеnt, to be followed by 3 years of supervised release. Defendant timely filed a notice of appeal. Because Defendant knowingly and voluntarily 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 voluntarily made.” 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, rеasons. 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 sentence fall within the broad range authorized by the plea agreement.1 Defendant agrees that such an interpretation is plausible, but he аrgues that the phrase also could be read to require that
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 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 court judge could impose a sentence of between 4 and 87 months’ imprisonment, deрending 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 wаs incorrect—is similarly unavailing. We need not reach the merits of the “crime of violence” question because, regardless of the correct answer to that question, Defendant was sentenced “in accordance with” the plea agreement. As we have explained, because 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. 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 viоlence” 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 ab
DISMISSED.
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 oрinions.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” 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 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 hаs 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
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, experiеnce, and conduct.” United States v. Martinez, 143 F.3d 1266, 1269 (9th Cir.1998) (quoting Edwards 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.2003).
II. THIS WAIVER IS UNENFORCEABLE
Under this court‘s jurisprudence, Medina-Carrasco‘s “waiver of his appellate
Section IV of the plea agreement here states that Medina-Carrasco 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. Op. at 1209. First, the waiver is effective so long as Medina-Carrasco 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. Op. at 1209. Or, second, the waiver is effective so long as Medina-Carrasco received a sentence based on a properly calculated sentencing guideline range, id. at 1209-10, 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 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.” Op. at 1210.5
I disagree with the majority‘s view that the second, alternative interpretation is implausible. In my view, both interpreta-
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 interprеtation 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 agreеment 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 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 frоm 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 knоwingly 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
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. Op. at 1209-10. And despitе 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-Carrasсo could appeal if the sentence 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 Medina-Carrasco‘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. Op. at 1209 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
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.1; 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
The government and Medina-Carrasco agree that
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 elеment 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 disjunctively worded 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 Medina-Carrasco‘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 sеntencing court cannot conclude that the jury in fact agreed on the particular means of commission.“).
I therefore would reverse the sentence and remand for resentencing.
Margie DANIEL; Mary Hauser; Donna Glass; Andrea Duarte, individually and on behalf of a class of similarly situated individuals, Plaintiffs-Appellants, v. FORD MOTOR COMPANY, a Delaware corporation, Defendant-Appellee.
No. 13-16476.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Oct. 22, 2015.
Filed Dec. 2, 2015.
Notes
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). 1. United States v. Salmeron-Ozuna, 597 Fed. Appx. 454 (9th Cir.2015) (unpublished); United States v. Hernandez-Lopez, 594 Fed. Appx. 385 (9th Cir.2015) (unpublished); United States v. Banos-Mejia, 588 Fed. Appx. 522 (9th Cir.2014) (unpublished); United States v. Perez-Mancilla, 573 Fed. Appx. 615 (9th Cir.2014) (unpublished); United States v. Gonzales-Garcia, 541 Fed. Appx. 764 (9th Cir.2013) (unpublished); United States v. Rodriguez, 540 Fed. Appx. 662 (9th Cir.2013) (unpublished); United States v. Baltazar-Neri, 540 Fed. Appx. 630 (9th Cir.2013) (unpublished); United States v. Aguilar-Balbuena, 475 Fed. Appx. 222 (9th Cir.2012) (unpublished).
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 Fed.Appx. at 454 (emphasis added). In only one of the eight cases, United States v. Hernandez-Lopez, 594 Fed.Appx. at 385, did the panel adopt the position taken by the majority in this сase.