United States v. Medina-Carrasco

• Decision Date: 02 December 2015
• Docket Number: No. 13–10397.,13–10397.
• Citation: 806 F.3d 1205
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Jose MEDINA–CARRASCO, aka Josue Medina Carrasco, aka Jose Antonio Pereida Lopez, aka Jose Pereida–Lopez, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

806 F.3d 1205

UNITED STATES of 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.

Argued and Submitted July 6, 2015.

Filed Dec. 2, 2015.

Jill E. Thorpe(argued), Tucson, AZ, for Defendant–Appellant.

Christina M. Cabanillas(argued), Assistant United States Attorney, John S. Leonardo, United States Attorney, and Robert L. Miskell, Appellate Chief, District of Arizona, Tucson, AZ, for Plaintiff–Appellee.

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.

FACTUAL AND PROCEDURAL HISTORY

A federal grand jury indicted Defendant on one count of illegal reentry after deportation, in violation of 8 U.S.C. § 1326(a)as enhanced by § 1326(b)(1). He pleaded guilty pursuant to a written “fast-track” plea agreement. The agreement listed 18 different sentencing ranges, reached by combining three possible offense levels with six possible criminal history categories. The agreement did not explain how the applicable offense level would be calculated, except to cite U.S.S.G. § 2L1.2and state that “[t]he precise level of offense and number of months sentence imposed will be determined by the court based upon the defendant's criminal record.” The guidelines ranges varied widely: The lowest range was 4 to 10 months' imprisonment, and the highest range was 70 to 87 months' imprisonment.

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 under 28 U.S.C. §§ 2241and 2255(habeas petitions), and any right to file a motion for modification of sentence, including under 18 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 Rule 11colloquy, Fed.R.Crim.P. 11, the magistrate judge addressed the wide range of sentences listed in the agreement:

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 court 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 appeal 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 requested 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, other than the request for the departure or variance, he had no “objections to the probation officer's guideline recommendations and factual representations in the report.” Later, defense counsel specifically conceded, referring to Defendant's aggravated assault conviction, that “it's a crime of violence, ... it's a level 24.”

The district court sentenced Defendant to a below-guidelines 55 months of imprisonment, 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, reasons. 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.¹Defendant agrees that such an interpretation is plausible, but he argues that the phrase also could be read to require that any sentence imposed rest on a correct guidelines calculation.

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 ify 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...