U.S. v. Castillo

• Decision Date: 22 September 2006
• Docket Number: No. 05-30401.,05-30401.
• Citation: 464 F.3d 988
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Domingo Jacobo CASTILLO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 988

464 F.3d 988

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

No. 05-30401.

United States Court of Appeals, Ninth Circuit.

Submitted June 7, 2006.^*

Filed September 22, 2006.

Dawn M. Reynolds, Dallas, OR, for the defendant-appellant.

K. Jill Bolton, Assistant 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 Judge, Presiding. D.C. No. CR-04-02157-FVS.

Before: BEEZER, TALLMAN, and BYBEE, Circuit Judges.

BEEZER, Circuit Judge:

Domingo Jacobo Castillo ("Jacobo") pleaded guilty to one count of being an illegal alien in possession of a firearm in violation of 18 U.S.C. § 922(g)(5). He now appeals the denial of his pre-plea motion to suppress and argues that the delay between the discovery of the firearm and his indictment constitutes a violation of his Fifth Amendment due process rights. We lack jurisdiction over this appeal because Jacobo entered an unconditional guilty plea.

We have previously held that "an unconditional guilty plea constitutes a waiver of the right to appeal all nonjurisdictional antecedent rulings and cures all antecedent constitutional defects." United States v. Lopez-Armenta, 400 F.3d 1173, 1175 (9th Cir.2005); see also United States v. Reyes-Platero, 224 F.3d 1112, 1115 (9th Cir.2000) ("[W]e 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. Floyd, 108 F.3d 202, 204 (9th Cir.1997) ("Unless [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 [appellant's] appeal of the denial of the suppression motion unless she entered a valid conditional plea.").¹

Jacobo did not enter a conditional plea pursuant to Fed.R.Crim.P. 11(a)(2) but plead unconditionally. That should have been the end of this appeal.

The government, however, does not argue that we lack jurisdiction due to Jacobo's unconditional plea. The government's silence presents the undecided question whether the government can waive the jurisdictional defect thereby allowing the court to decide the merits of the appeal. See, e.g., United States v. Schlesinger, 49 F.3d 483, 485 (9th Cir.1994) ("This court will not address waiver if not raised by the opposing party."); United States v. Lewis, 798 F.2d 1250 (9th Cir. 1986) amending United States v. Lewis, 787 F.2d 1318 (9th Cir.1986) ("Because the government failed to raise this question in its brief or at oral argument, we decline to address it.").

We hold that the jurisdictional defect is not waivable and a defendant'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.² As stated by the Supreme Court in Tollett v. Henderson:

[A] guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.

411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973). The Supreme Court clarified that the holding in Tollett was not a simple issue of waiver of the right to appeal but was based on the determination that:

[A] counseled plea of guilty is an admission of factual guilt so reliable that, where voluntary and intelligent, it quite validly removes the issue of factual guilt from the case . . . [and] factual guilt is a sufficient basis for the State's imposition of punishment. A guilty plea, therefore, simply renders irrelevant those constitutional violations not logically inconsistent with the valid establishment of factual guilt and which do not stand in the way of conviction, if factual guilt is validly established.

Menna v. New York, 423 U.S. 61, 63 n. 2, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975). An unconditional guilty plea renders rulings on pretrial motions irrelevant and deprives appellate courts of the ability to reassess those rulings. See Lopez-Armenta, 400 F.3d at 1175 ("[A]n unconditional guilty plea . . . cures all antecedent constitutional defects.") (emphasis added). The government's waiver cannot alter the "break in the chain of events" and create jurisdiction. See Torres v. Oakland Scavenger Co., 487 U.S. 312, 317 n. 3, 108 S.Ct. 2405, 101 L.Ed.2d 285 (1988) ("a litigant's failure to clear a jurisdictional hurdle can never be `harmless' or waived by a court"); Guzman-Andrade v. Gonzales, 407 F.3d 1073, 1077 (9th Cir.2005) (holding that jurisdiction cannot be created by the parties' agreement through consent or stipulation and the parties cannot "waive its absence").

In United States v. Rogers, 387 F.3d 925 (7th Cir.2004), the Seventh Circuit considered the same issue and determined that an unconditional plea created a non-waivable jurisdictional bar to appellate review. In Rogers, as in this case, the government did present the waiver argument in its briefs and addressed only the merits of the underlying constitutional claim. Id. at 934. The court concluded that despite the government's waiver of the jurisdictional argument, it had no jurisdiction to consider the merits of appellant's claims. Id. (citing cases).

Jacobo's entry of an unconditional guilty plea deprives us of jurisdiction to consider his pre-plea constitutional claims.

DISMISSED.

Dissent by Judge BYBEE.

BYBEE, Circuit Judge, dissenting:

I write separately because our precedents will not support — and, indeed, they contradict — the majority's holding. In particular, the majority's holding clearly conflicts with our decision in United States v. Garcia-Lopez, 309 F.3d 1121, 1122 (9th Cir.2002). I believe that we cannot dismiss this case for want of jurisdiction without seeking en banc approval.

I agree that Jacobo relinquished his pretrial constitutional appeals at sentencing. See Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973). The question is: What are the consequences? Not infrequently, a defendant who has waived his right to appeal in a plea agreement will file an appeal anyway. Ordinarily, in such cases, the government will advise us of the waiver, either by motion or in its brief, and we will dismiss the appeal, often in a memorandum disposition. But in this case, the government answered Jacobo's contentions on the merits, never arguing that Jacobo's appeal was barred or moving to dismiss his appeal. Nevertheless, the majority holds that Jacobo's waiver is a jurisdictional bar, and that we must dismiss the appeal, even though the government never raised the point. In support of its holding the majority cites a number of cases in which we dismissed the appeal. Maj. op. at 989. But in those cases, the government properly asserted the bar to appeal. See United States v. Lopez-Armenta, 400 F.3d 1173, 1175 (9th Cir.2005) ("The government moved to dismiss the appeal" before a motions panel); United States v. Reyes-Platero, 224 F.3d 1112, 1114 (9th Cir.2000) ("The government argues that Reyes-Platero waived these arguments by unconditionally pleading guilty."); United States v. Floyd, 108 F.3d 202, 203 (9th Cir.1997) ("The government . . . moved to dismiss the appeal for lack of jurisdiction because Floyd's plea was not a Rule 11(a)(2) conditional guilty plea."); see also United States v. Nunez, 223 F.3d 956, 958 (9th Cir.2000) ("[T]he government clearly preserved its defense by filing a motion to dismiss Nunez's appeal before filing its appellee's brief."); United States v. Cortez, 973 F.2d 764, 766 (9th Cir.1992) ("The United States argues that Cortez' selective prosecution motion was waived both by Cortez' failure to file the claim before trial and his plea of guilty."). Here, the government not only failed to file a motion to dismiss, but also never argued for a waiver of appeal in its brief. When "the government fail[s] to raise this question in its brief or at oral argument, we decline to address it." United States v. Lewis, 798 F.2d 1250 (9th Cir.1986), amending United States v. Lewis, 787 F.2d 1318 (9th Cir.1986).

More importantly, we have previously held that "the government can waive the waiver" in cases where a defendant appeals despite a guilty plea. United States v. Garcia-Lopez, 309 F.3d 1121 (9th Cir. 2002). In Garcia-Lopez, the government properly moved to dismiss the appeal, and then explicitly waived the appeals bar in subsequent briefing. We held that "even if a defendant has waived his right to appeal in a plea agreement, we may nevertheless hear the appeal when the government has expressly waived its right to assert the defendant's waiver." Id.; see also id. at 1123 (the "government `waived [its] waiver' argument by failing to raise it.") (quoting Fagan v. Washington, 942 F.2d 1155, 1157 (7th Cir.1991) and citing United States v. Lewis, 798 F.2d 1250 (9th Cir.1986)) (alteration in original). In that case, express waiver was required because the government had preserved its rights by filing a motion to dismiss the appeal. We reasoned that "[i]f the government can `waive waiver' implicitly by failing to assert it, certainly the government can do so explicitly, as occurred here." Id. (emphasis added).

Here, however, no express waiver is necessary because the government never asserted its right to rely on defendant's relinquishment of his appeal in the first place. Where the government has never asserted its rights, the issue is "whether the government can waive the waiver. We [have] h[e]ld that it can." Id. at 1122. We rendered a similar decision in United States v. Doe, 53 F.3d...