United States v. 2012-10-05 | 10-30369 | USA V. LINO MENDEZ-GONZALEZ | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 UNITED STATES OF AMERICA, No. 10-30369
Plaintiff-Appellee, D.C. No.
v. 2:10-cr-00084-  MJP-2LINO MENDEZ-GONZALEZ,
Defendant-Appellant. OPINION

Appeal from the United States District Court
for the Western District of Washington
Marsha J. Pechman, Chief District Judge, Presiding
Submitted August 9, 2012*
Seattle, Washington
Filed October 5, 2012
Before: Susan H. Black,** Susan P. Graber, and
Johnnie B. Rawlinson, Circuit Judges.
Per Curiam Opinion
*The panel unanimously finds this case suitable for decision without
oral argument. Fed. R. App. P. 34(a)(2).
**The Honorable Susan H. Black, Senior United States Circuit Judge
for the Eleventh Circuit, sitting by designation.
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COUNSEL
Jerald Brainin, Los Angeles, California, for the defendant-
appellant.
Michael S. Morgan, Assistant United States Attorney, Seattle,
Washington, for the plaintiff-appellee.
OPINION
PER CURIAM:
Defendant Lino Mendez-Gonzalez pleaded guilty to a drug-
related offense and received a sentence that includes super-
vised release. He appeals only the court’s requirement that he
submit to periodic drug testing during his supervised release.
The government argues that, as part of his plea agreement,
Defendant waived the right to appeal any part of his sentence,
including the drug-testing condition. Defendant argues that
the waiver does not apply or is unenforceable. We dismiss the
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appeal because Defendant’s appellate waiver is enforceable
and it applies here.1
Defendant was indicted for conspiracy to distribute 500
grams or more of methamphetamine, in violation of 21 U.S.C.
§§ 841 and 846. He initially pleaded not guilty, but later
agreed to plead guilty at a change of plea hearing at which he
was assisted by an interpreter. Defendant signed a written plea
agreement in which he waived certain rights to appeal his sen-
tence, as follows:
As part of this Plea Agreement and on the condition
that the Court imposes a custodial sentence that is
within or below the Sentencing Guidelines range (or
the mandatory minimum, if greater than the Guide-
lines range) that is determined by the Court at the
time of sentencing, Defendant waives to the full
extent of the law:
a. Any right conferred by Title 18, United States
Code, Section 3742 to appeal the sentence,
including any restitution order imposed; and
b. Any right to bring a collateral attack against the
conviction and sentence, including any restitu-
tion order imposed, except as it may relate to the
effectiveness of legal representation.
After explaining the content of the agreement to Defendant
and finding the plea to have been entered “freely, voluntarily,
and intelligently,” a magistrate judge accepted the plea agree-
ment.
1“Whether appellant has waived [the] right to appeal is reviewed de
novo.” United States v. Bibler, 495 F.3d 621, 623 (9th Cir. 2007). Of
course, it is somewhat imprecise to say that we “review” de novo, because
the district court never considered the issue. But we decide it in the first
instance, as in de novo review.
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At sentencing, also conducted with the assistance of an
interpreter, the district judge again explained the plea agree-
ment, especially the appeal waiver, to Defendant. The district
judge determined that the Sentencing Guidelines called for
135 to 168 months’ imprisonment, but concluded that Defen-
dant merited a downward departure, and sentenced him to 100
months’ imprisonment plus five years’ supervised release.
[1] Defendant timely appeals, but only with respect to his
sentence. Under our precedent,
[a]n appeal waiver will not apply if: 1) a defen-
dant’s guilty plea failed to comply with Fed. R.
Crim. P. 11; 2) the sentencing judge informs a defen-
dant that she retains the right to appeal; 3) the sen-
tence does not comport with the terms of the plea
agreement; or 4) the sentence violates the law.
United States v. Bibler, 495 F.3d 621, 624 (9th Cir. 2007).
[2] Defendant identifies no Rule 11 defect and we see
none. Having reviewed the record and the plea colloquy, we
conclude that Defendant entered his plea knowingly and vol-
untarily. Therefore, the first exception does not apply.
[3] Because the district judge did not advise defendant,
“without qualification, that he . . . ha[d] a right to appeal,”
United States v. Watson, 582 F.3d 974, 987 (9th Cir. 2009)
(internal quotation marks omitted), the second exception does
not apply. Compare United States v. Buchanan, 59 F.3d 914,
917 (9th Cir. 1995) (exception applied where judge advised
defendant, “ ‘you have the right to appeal findings which I
make today regarding sentencing’ ”), with United States v.
Aguilar-Muniz, 156 F.3d 974, 977 (9th Cir. 1998) (exception
did not apply where judge observed that, although a waiver is
“ ‘generally enforceable,’ ” a defendant can still argue unen-
forceability to an appellate court). Rather, the court in this
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case cautioned Defendant about the appeal waiver and noted
only that he forfeited “many” of his appellate rights.
[4] The third exception is unavailable to Defendant
because the sentence was below the guideline range.
[5] The fourth exception, dealing with illegal sentences,
applies only to sentences that “exceed[ ] the permissible statu-
tory penalty for the crime or violate[ ] the Constitution.”
Bibler, 495 F.3d at 624. Here, as in Bibler, “[i]nsofar as the
district court sentenced appellant to a term of years beneath
the maximum allowed by statute, the sentence is not ‘illegal’
and cannot excuse the waiver of appeal.” Id. The supervised
release condition is, similarly, not illegal, in that 18 U.S.C.
§§ 3583 and 3563 not only allow, but require, the imposition
of that condition in most circumstances.2
[6] Thus the appeal waiver is enforceable. The next ques-
tion is whether Defendant’s challenge to a supervised release
condition falls within the scope of that waiver. Defendant
agreed to waive “[a]ny right conferred by Title 18, United
States Code, Section 3742 to appeal the sentence.” The
quoted passage effects a waiver of the right to appeal a condi-
tion of supervised release.
In United States v. Joyce, 357 F.3d 921, 925 (9th Cir.
2004), we held that a similar waiver deprived us of jurisdic-
tion to hear a challenge to supervised release conditions.
There, the waiver provided that the defendant “ ‘waive[d]
[his] right under 18 U.S.C. § 3742 to appeal any aspect of the
2For example, 18 U.S.C. § 3583(d) provides:
The court shall also order, as an explicit condition of supervised
release, that the defendant refrain from any unlawful use of a
controlled substance and submit to [periodic testing] for use of a
controlled substance. The condition stated in the preceding sen-
tence may be ameliorated or suspended by the court as provided
in section 3563(a)(4).
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sentence imposed.’ ” Id. at 923 (some emphasis omitted). In
determining the scope of the waiver, we observed that, under
§ 3742 and throughout Title 18, “[t]he word ‘sentence’
encompasses both prison time and periods of supervised
release.” Id. at 924. We also reasoned that the “any aspect”
phrase eliminated “any arguable ambiguity about whether
‘sentence’ means what 18 U.S.C. § 3742 says it means, or
means only time served in prison.” Id. at 923; see also Wat-
son, 582 F.3d at 986 (reaching the same result as Joyce, in a
case involving a waiver of “any right . . . to appeal any aspect
of [the] sentence” (some emphasis omitted)).
Defendant argues that Joyce is distinguishable because,
here, the waiver does not contain the same “any aspect” word-
ing. But that phrase was not the primary rationale for the
result in Joyce, which focused more closely on the meaning
of “sentence” in “the statute that provides the only source of
[a defendant’s] right to appeal.” 357 F.3d at 924. Other cir-
cuits generally agree. See, e.g., United States v. Goodson, 544
F.3d 529, 538 (3d Cir. 2008) (“By stating that [the defendant]
‘waives the right to take a direct appeal from his . . . sentence
under . . . 18 U.S.C. § 3742,’ the provision explicitly bars any
appeal relying upon § 3742 for jurisdiction. Because § 3742
is the only statutory section that provides jurisdiction for an
appeal of a condition of supervised release, [the defendant’s]
waiver bars his challenge.” (ellipses in original)); United
States v. Sandoval, 477 F.3d 1204, 1207 (10th Cir. 2007)
(“Supervised-release conditions are part of the sentence; and
the reference to 18 U.S.C. § 3742 (the statutory basis for sen-
tence appeals) in . . . the plea agreement makes clear that the
waiver encompasses all appellate challenges to the sentence
other than those falling within the explicit exception for chal-
lenges to upward departures.” (citing Joyce, 357 F.3d at
922-24)); see also United States v. Andis, 333 F.3d 886, 892
n.7 (8th Cir. 2003) (en banc) (holding that a “waiver included
that portion of [a] sentence which involved the imposition of
a term of supervised release and its conditions”); United
States v. Sines, 303 F.3d 793, 799 (7th Cir. 2002) (holding
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that waiver of right to appeal sentence includes conditions of
supervised release). Accordingly, Joyce applies.
Finally, Defendant argues that the modifying phrase “in-
cluding any restitution order imposed” renders the agreement
ambiguous. We are not persuaded. Reading the plea agree-
ment in a straightforward manner, “including” illustrates, but
does not limit, the preceding phrase.
[7] For the foregoing reasons, Defendant has waived his
right to appeal the conditions of his supervised release, and
we must dismiss the appeal.
APPEAL DISMISSED.
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