U.S. v. Jacobo Castillo

• Decision Date: 25 July 2007
• Docket Number: No. 05-30401.,05-30401.
• Citation: 496 F.3d 947
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Domingo JACOBO CASTILLO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

496 F.3d 947

UNITED STATES of America, Plaintiff-Appellee, v. Domingo JACOBO CASTILLO, Defendant-Appellant.

No. 05-30401.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted En Banc March 21, 2007.

Filed July 25, 2007.

David M. Porter, Federal Public Defenders, Sacramento, CA, Dawn M. Reynolds, Law Offices of Dawn M. Reynolds, Dallas, OR, for the defendant-appellant.

Jill Bolton, Office of the United States Attorney, Spokane, WA, for the plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Washington; Fred L. Van Sickle, Chief District Judge, Presiding. D.C. No. CR-04-02157-FVS.

Before: MARY M. SCHROEDER, Chief Circuit Judge, HARRY PREGERSON, STEPHEN REINHARDT, PAMELA ANN RYMER, SIDNEY R. THOMAS, SUSAN P. GRABER, KIM McLANE WARDLAW, WILLIAM A. FLETCHER, RAYMOND C. FISHER, RONALD M. GOULD, RICHARD A. PAEZ, MARSHA S. BERZON, JAY S. BYBEE, CONSUELO M. CALLAHAN, and MILAN D. SMITH, JR., Circuit Judges.

Opinion by Judge BYBEE; Dissent by Judge CALLAHAN.

BYBEE, Circuit Judge:

We granted en banc review in this case to resolve a question to which we have given inconsistent answers: Do we have jurisdiction to hear an appeal when the defendant entered a guilty plea in which he waived his right to appeal? Domingo Jacobo Castillo pled guilty to one count of being an illegal alien in possession of a firearm in violation of 18 U.S.C. § 922(g)(5). Notwithstanding his guilty plea, Jacobo Castillo appealed his conviction. The government failed to raise the plea or his plea agreement as a bar to this appeal and instead responded to Jacobo Castillo's arguments on the merits. A divided panel dismissed the appeal for lack of jurisdiction. United States v. Jacobo Castillo, 464 F.3d 988 (9th Cir.2006), reh'g en banc granted, 473 F.3d 1264 (9th Cir. 2007).

Our cases offer two different views of the question whether we have jurisdiction under these circumstances. In one line of cases, we have held that "we do not have jurisdiction over the merits of appeals based upon pre-waiver constitutional defects," and "we must dismiss that portion of the appeal." United States v. Reyes-Platero, 224 F.3d 1112, 1115 (9th Cir.2000); see also United States v. Floyd, 108 F.3d 202, 204 (9th Cir.1997) ("Unless [the appellant's] plea conformed with [Rule 11(a)(2)'s] specific requirements, we have no jurisdiction to hear her appeal."); United States v. Carrasco, 786 F.2d 1452, 1453-54 (9th Cir.1986) ("We do not have jurisdiction to decide [the appellant's] appeal of the denial of the suppression motion unless she entered a valid conditional plea." (footnote omitted)). On the other hand, we have treated plea agreements as a waiver of the right to appeal that "does not divest the Court of jurisdiction it otherwise enjoys," United States v. Doe, 53 F.3d 1081, 1082 (9th Cir.1995), because "the government can waive the waiver," United States v. Garcia-Lopez, 309 F.3d 1121, 1122 (9th Cir.2002); see also United States v. Lopez-Armenta, 400 F.3d 1173, 1175-77 (9th Cir.) (discussing the plea bar as waiver), cert. denied, 546 U.S. 891, 126 S.Ct. 199, 163 L.Ed.2d 204 (2005); United States v. Anglin, 215 F.3d 1064, 1066 (9th Cir.2000) (discussing the appeal bar as a waiver); United States v. Bolinger, 940 F.2d 478, 480 (9th Cir.1991) (noting that a guilty plea functions as "an express waiver of the right to appeal"); United States v. Lewis, 798 F.2d 1250, 1250 (9th Cir.) (holding that when "the government fail[s] to raise [the question of waiver] in its brief or at oral argument, we decline to address it"), amending 787 F.2d 1318 (9th Cir.1986). We have even blended the two positions. See Reyes-Platero, 224 F.3d at 1114 ("The government argues that Reyes-Platero waived these arguments by unconditionally pleading guilty. The implication of the government's argument is that we do not have jurisdiction . . . .").

We now hold that a valid guilty plea does not deprive the court of jurisdiction and remand to the panel for further proceedings.

I

Jacobo Castillo was indicted in November 2004 on a single count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(5). In February 2005, Jacobo Castillo moved to suppress the firearm found during an earlier search of his residence in conjunction with an investigation into a robbery in which he was implicated. Jacobo Castillo sought to suppress the evidence, arguing that the police failed to show probable cause that the firearm used in the robbery, which had occurred six months earlier, would be located in the house to be searched. The district court denied the motion, and Jacobo Castillo entered into a plea agreement.

The plea agreement specified that the government would not file additional charges against him, would recommend a two-level downward departure for acceptance of responsibility, and that the term of imprisonment would run concurrently with a sentence imposed following a related conviction. In exchange, Jacobo Castillo agreed to plead guilty and waive certain rights. The two relevant provisions of the plea agreement are as follows:

Waiver of Constitutional Rights:

The Defendant, DOMINGO JACOBO CASTILLO, understands that by entering this plea of guilty the Defendant is knowingly and voluntarily waiving certain constitutional rights, including:

(a). The right to a jury trial on the charge;

(b). The right to see, hear and question the witnesses;

(c). The right to remain silent at trial;

(d). The right to testify at trial; and

(e). The right to compel witnesses to testify.

While the Defendant is waiving certain constitutional rights, the Defendant understands the Defendant retains the right to be assisted through the sentencing and any direct appeal of conviction and sentence by an attorney, who will be appointed at no cost if the Defendant cannot afford to hire an attorney. The Defendant also acknowledges that any pretrial motions currently pending before the Court are waived.

Another provision of the plea agreement concerned his appeal rights:

Appeal Rights:

The Defendant agrees to waive the right to appeal the sentence if the Court imposes a prison term within the guideline range of 21-27 months and if the Court orders said term to run concurrently with [his previous sentence] with a term of supervised release of no longer than three (3) years.

Nowhere does the plea agreement refer to a conditional plea under Federal Rule of Criminal Procedure 11(a)(2) or identify issues preserved for appeal. At sentencing, the probation officer recommended a different criminal history score than the government, which resulted in a proposed Sentencing Guidelines range of 46 to 57 months. The court accepted the plea agreement and the criminal history score recommended by the probation officer and imposed a sentence of 46 months to run concurrently with the term Jacobo Castillo was serving for a prior conviction. Upon examining the plea agreement, the court told Jacobo Castillo, "[Y]ou have the right to appeal this court's determinations."

Jacobo Castillo appealed. Although his sentence exceeded the prison term specified in the plea agreement, Jacobo Castillo did not appeal his sentence. Instead, he challenged his underlying conviction by raising the preindictment delay and the district court's refusal to suppress the firearm seized in the search. Inexplicably, in response to Jacobo Castillo's opening brief, the government did not assert Jacobo Castillo's plea agreement as a bar to his appeal. Instead, the government addressed only the merits of Jacobo Castillo's claims. Over a dissent, a panel majority held that we had no jurisdiction to hear Jacobo Castillo's claims and dismissed his appeal: "[Jacobo Castillo's] failure to preserve his appellate rights by entering a conditional plea pursuant to Rule 11(a)(2) deprives us of the authority to consider the merits of a claim." Jacobo Castillo, 464 F.3d at 989. The dissenting judge acknowledged that some of our decisions would support the majority's position, but argued that our cases were in conflict. Id. at 992 (Bybee, J., dissenting). We agreed to rehear this case en banc to resolve this issue and to overrule our inconsistent precedents.

II

We begin with the fundamental proposition that "federal courts are courts of limited jurisdiction . . . empowered to hear only those cases that (1) are within the judicial power of the United States, as defined in the Constitution, and (2) that have been entrusted to them by a jurisdictional grant by Congress." 13 CHARLES ALAN WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE § 3522, at 60 (2d ed.1984) (footnote omitted); see also Ins. Corp. of Ir. Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 701-02, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982); Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 372-73, 98 S.Ct. 2396, 57 L.Ed.2d 274 (1978). We clearly have constitutional power and statutory authorization to adjudicate this case. Article III provides that "[t]he judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution [and] the Laws of the United States." U.S. CONST. art. III, § 2. Additionally, Congress has affirmatively authorized district courts to hear criminal cases involving "all offenses against the laws of the United States." 18 U.S.C. § 3231; see also Lamar v. United States, 240 U.S. 60, 65, 36 S.Ct. 255, 60 L.Ed. 526 (1916) (stating that "nothing can be clearer than that the district court . . . has jurisdiction of all crimes cognizable under the authority of the United States"). Finally, Congress has conferred jurisdiction on the courts of appeals to hear "appeals from all final decisions of the district courts of the United States." 28 U.S.C. § 1291; see, e.g., SEC v. Capital Consultants LLC, 453 F.3d 1166, 1169 (9th Cir.2006) (per curiam); United States v. Griffin, 440 F.3d 1138, 1141 (9th Cir.), cert. denied, ___ U.S. ___, 127 S.Ct. 259, 166 L.Ed.2d 201 (2006)...