U.S. v. Jeronimo

• Decision Date: 23 February 2005
• Docket Number: No. 03-30394.,03-30394.
• Citation: 398 F.3d 1149
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Pascual Dionicio JERONIMO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1149

398 F.3d 1149

UNITED STATES of America, Plaintiff-Appellee, v. Pascual Dionicio JERONIMO, Defendant-Appellant.

No. 03-30394.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted September 13, 2004.

Filed February 23, 2005.

Richard L. Fredericks, Eugene, OR, for the defendant-appellant.

Karin J. Immergut, United States Attorney, District of Oregon, and Frank R. Papagni, Jr., Assistant United States Attorney, District of Oregon, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Oregon; Michael R. Hogan, Chief District Judge, Presiding. D.C. No. CR-02-60067-1-MRH.

Before WALLACE, GOULD, and BERZON, Circuit Judges.

Opinion by Judge GOULD; Dissent by Judge BERZON.

GOULD, Circuit Judge.

We consider whether a plea agreement is enforceable and effectively waives the right of appeal. We conclude that we are without jurisdiction to assess the merits of this direct appeal.

I

In July 2002, Pascual Dionicio Jeronimo ("Jeronimo") faced a potential maximum sentence of thirty years imprisonment for various drug trafficking offenses when he entered into plea negotiations with the government. Through his former attorney, John Kolego ("Kolego"), Jeronimo reached a plea agreement on November 1, 2002, whereby the government agreed to dismiss some of his pending charges, recommend downward departure and a sentence at the low end of the applicable guideline range, refrain from seeking an upward departure, and reduce his maximum potential sentence to twenty years. In return, Jeronimo agreed to plead guilty to two counts of drug trafficking, admit to specific drug quantities, forfeit his interest in certain property, and to waive his rights to appeal and to collaterally attack the length of his sentence. Both Jeronimo and Kolego signed the plea agreement. Immediately above Jeronimo's signature in capital letters was the following statement:

I HAVE READ OR HAD READ AND TRANSLATED TO ME IN SPANISH BY AN INTERPRETER, THIS AGREEMENT AND HAVE CAREFULLY REVIEWED EVERY PART OF IT WITH MY ATTORNEY.

I UNDERSTAND AND VOLUNTARILY AGREE TO IT AND PROMISE TO ABIDE BY EVERY TERM.

I VOLUNTARILY SIGN THIS AGREEMENT WITH THE FULL UNDERSTANDING OF ALL OF THE ABOVE.

At Jeronimo's change of plea hearing, which also took place on November 1, 2002, the district court dutifully conducted a comprehensive plea colloquy with Jeronimo that embraced all disclosures and inquiries required by Rule 11 of the Federal Rules of Criminal Procedure.¹ Among these disclosures was the district court's explicit advice to Jeronimo that "the maximum penalty [under his plea agreement was] 20 years in prison and a fine of up to $1 million." Jeronimo in response assured the district court that he had discussed the federal Sentencing Guidelines with Kolego, and that he was satisfied with Kolego's help. When asked if his plea was "freely and voluntarily made with a good understanding of the nature of the charges against [him] and the matters in [the] plea petition and plea bargain letter," Jeronimo said "yes."

Before the court's acceptance of the plea, the prosecutor interjected comments alerting Jeronimo that the government was planning to bring his prior drug and felony assault convictions, as well as his status as an illegal alien and a prison escapee, to the court's attention during sentencing. When the court asked Jeronimo if he understood that these facts would "likely affect [his] sentence," Jeronimo responded "yes." The court accepted his plea.

The United States Probation Office issued its Presentence Report and Sentencing Recommendation on December 10, 2002. Because of his previous convictions for felony assault and drug trafficking, Jeronimo was classified as a career offender with an applicable Sentencing Guidelines range of 151-88 months of imprisonment.

On March 6, 2003, Jeronimo moved through Kolego to withdraw his guilty plea on the grounds that "he[did] not believe that he was adequately advised as to the potential sentencing consequences prior to his change of plea and[did] not feel his plea was intelligently and knowingly made." On March 17, 2003, Jeronimo filed a separate pro se "Motion to Withdraw Plea of Guilty Due to Inadequate and Fraudulent Representation By Legal Counsel" alleging that Kolego "on several occasions distorted facts as well as misled for the purpose of extracting a `Guilty' plea." He also alleged that Kolego "repeatedly changed and lied about possible sentences after [the] plea of `Guilty' was entered."

On May 27, 2003, Richard Fredericks ("Fredericks") was appointed as Jeronimo's new attorney. On August 14, 2003, Fredericks filed a Memorandum in Support of Motion to Withdraw Guilty Plea on Jeronimo's behalf, asserting that Jeronimo was "deprived... of the opportunity to make an intelligent and voluntary decision" because he allegedly pleaded in reliance on Kolego's erroneous prediction that he would receive a sentence of 87 months.

At a hearing on his plea withdrawal motion, Jeronimo testified that he had many discussions with Kolego about "the merits of the plea offer" and the Sentencing Guidelines, and that his "understanding" based on these discussions was that he would receive a sentence of 87 months as Kolego "predict[ed]." Jeronimo also testified that Kolego never raised the possibility of "career offender" sentencing during any of their discussions and that he would not have accepted the plea offer if he had known that he would receive a sentence of 151 months.

On cross-examination, Jeronimo continued to assert that he had "made a deal" with Kolego, stating: "I trusted in him... and I signed for 87 months. When I realized that the sentence was longer, if I had realized, if I known that, I wouldn't have sign[ed] it." However, he conceded that he entered his plea with the understanding that his sentencing would be up to the judge, not Kolego. Jeronimo also admitted that "the deal that [he] made with his lawyer did not include what this judge was going to sentence [him] to"; that the government had warned him at his change of plea hearing that his prior convictions would be raised at sentencing, and the district court had observed that those facts would "likely affect the extent" of his sentence; that he had pleaded guilty with the understanding that he could receive a sentence of up to twenty years; and that he had received the benefit of his bargain because 151 months was less than twenty years.

In denying Jeronimo's motion to withdraw his plea, the district court noted that Jeronimo's argument that his defense attorney "blew the career offender issue" was "made without evidence from the attorney," and that "even if that was the case ... a perfect attorney doesn't exist." This timely appeal followed.

II

We lack jurisdiction to entertain appeals where there was a valid and enforceable waiver of the right to appeal. United States v. Vences, 169 F.3d 611, 613 (9th Cir.1999) ("It would overreach our jurisdiction to entertain an appeal when the plea agreement effectively deprived us of jurisdiction."). We review de novo whether a defendant has waived his right to appeal by entering into a plea agreement and the validity of such a waiver. United States v. Ventre, 338 F.3d 1047, 1051 (9th Cir.2003). A defendant's waiver of his appellate rights is enforceable if (1) the language of the waiver encompasses his right to appeal on the grounds raised, and (2) the waiver is knowingly and voluntarily made. United States v. Joyce, 357 F.3d 921, 922 (9th Cir.2004); United States v. Martinez, 143 F.3d 1266, 1270-71 (9th Cir.1998).

A

We first must address the issue of whether Jeronimo's waiver of his right to appeal precludes his challenge on direct appeal to the district court's rejection of his request to withdraw his guilty plea, based on his assertion that fair and just reasons supported a change of plea. "Our analysis begins with the fundamental rule that plea agreements are contractual in nature and are measured by contract law standards." United States v. Clark, 218 F.3d 1092, 1095 (9th Cir.2000) (internal citation and quotation marks omitted). This customary reliance on contract law applies to interpretation of an appeals waiver within a plea agreement, and we will generally enforce the plain language of a plea agreement if it is clear and unambiguous on its face. United States v. Nunez, 223 F.3d 956, 958 (9th Cir.2000); see also Martinez, 143 F.3d at 1271.

In Martinez, the defendant entered into a plea agreement with language similar to that here. The Martinez plea agreement provided that "[a]ny plea of guilty entered by Defendant pursuant to this agreement and any judgment and/ or sentence based thereon ... will not be the subject of legal challenge by Defendant." 143 F.3d at 1270. In rejecting the defendant's attempt to appeal his sentence on the grounds that the district court had misapplied the Sentencing Guidelines, we held that the defendant's "waiver of any `legal challenge' encompasses all appeals on all grounds except for a few narrow exceptions,² none of which apply here." Id. at 1271. Similarly, in Nunez we held that an agreement stating that the defendant "knowingly and voluntarily waive[s] his right to appeal any sentence imposed by the Court" constituted an "unmistakable" waiver of the right to appeal. 223 F.3d at 958 (internal quotation marks omitted).

Here, Jeronimo's agreement provides in pertinent part that:

By accepting the benefits of this agreement and if sentenced by the Court to a term of imprisonment of less than the statutory maximum of 20 years, Mr. Jeronimo waives any and all rights to appeal, and all his waivable statutory rights to file a petition pursuant to 28 U.S.C. § 2255 challenging the length of his sentence.

This language plainly states that Jeronimo waived his right to appeal his sentence on any and all grounds in exchange for a sentence of less than twenty years and various other benefits under the...