United States v. Arias-Espinoza, No. 11-10663 (9th Cir. 2012)
Annotate this Case
Justia Opinion Summary
Want to stay in the know about new opinions from the Ninth Circuit US Court of Appeals?
Sign up for free summaries delivered directly to your inbox. Learn More ›
You already receive new opinion summaries from Ninth Circuit US Court of Appeals. Did you know we offer summary newsletters for even more practice areas and jurisdictions? Explore them here.
Defendant appealed his sentence for illegal re-entry into the United States. The government contended that defendant waived his right to appeal in his written plea agreement. The court held that the district court's statement near the end of the sentencing hearing that defendant "may have a right to appeal" was equivocal or ambiguous and therefore did not vitiate defendant's explicit waiver of the right to appeal in his written plea agreement.
Court Description: Criminal Law. Dismissing an appeal from a sentence, the panel held that the district court’s statement near the end of the sentencing hearing that the defendant “may have a right to appeal” was equivocal or ambiguous and therefore did not vitiate the defendant’s explicit waiver of the right to appeal in his written plea agreement.
Download PDF
FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA , Plaintiff - Appellee, No. 11-10663 v. D.C. No. 4:11-cr-02189-DCBGEE-1 EDUARDO ARIAS-ESPINOSA , Defendant - Appellant. OPINION Appeal from the United States District Court for the District of Arizona David C. Bury, District Judge, Presiding Argued and Submitted November 7, 2012 San Francisco, California Filed November 30, 2012 Before: Ronald M. Gould and Milan D. Smith, Jr., Circuit Judges, and Kevin T. Duffy, District Judge.* Opinion by Judge Gould * The Honorable Kevin Thomas Duffy, United States District Judge for the Southern District of New York, sitting by designation. 2 UNITED STATES V . ARIAS-ESPINOSA SUMMARY** Criminal Law Dismissing an appeal from a sentence, the panel held that the district court s statement near the end of the sentencing hearing that the defendant may have a right to appeal was equivocal or ambiguous and therefore did not vitiate the defendant s explicit waiver of the right to appeal in his written plea agreement. COUNSEL Randolfo V. López (argued), Randolfo V. López, PC, Tucson, Arizona, for Defendant-Appellant. Ann Birmingham Scheel, Acting United States Attorney for the District of Arizona; Christina M. Cabanillas, Assistant United States Attorney, Chief, Appellate Division; and Robert L. Miskell (argued), Assistant United States Attorney, Office of the United States Attorney, Tucson, Arizona, for Plaintiff-Appellee. ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. UNITED STATES V . ARIAS-ESPINOSA 3 OPINION GOULD, Circuit Judge: Eduardo Arias-Espinosa appeals his 51-month sentence for illegal re-entry into the United States in violation of 8 U.S.C. § 1326, as enhanced by § 1326(b)(2). The government contends that Arias-Espinosa waived his right to appeal in his written plea agreement. We agree and dismiss this appeal. I Arias-Espinosa pleaded guilty to illegal re-entry into the United States and signed a written plea agreement. The agreement included an explicit waiver of his right to appeal his conviction and any sentence imposed within the range permitted by the agreement. At the change of plea hearing before a magistrate judge, Arias-Espinosa said that his counsel had explained the plea agreement and that he understood it. He also said that he understood that he was waiving his right to appeal. The magistrate judge in his findings and recommendations told the district court that Arias-Espinosa had knowingly, intelligently, and voluntarily waived his right to appeal as stipulated in the plea agreement. At the sentencing hearing, the district court adopted the magistrate judge s findings and accepted Arias-Espinosa s guilty plea. The court sentenced Arias-Espinosa to 51 months, within the range specified in the plea agreement. But at the end of the hearing, the court advised: Mr. AriasEspinosa, you may have a right to appeal the sentence. The question is whether this statement by the district court vitiates Arias-Espinosa s written waiver of his right to appeal. 4 UNITED STATES V . ARIAS-ESPINOSA II We review de novo whether Arias-Espinosa waived his right to appeal. See United States v. Watson, 582 F.3d 974, 981 (9th Cir. 2009). Neither party argues that this appeal is outside the scope of the waiver or that the waiver was not knowingly and voluntarily made. See United States v. Nunez, 223 F.3d 956, 958 (9th Cir. 2000). The sole issue is whether the district court s statement near the end of sentencing vitiated the waiver. III We have held that a district court s clear statement that a defendant has the right to appeal renders unenforceable the defendant s prior waiver of this right in a plea agreement. United States v. Buchanan, 59 F.3d 914, 916 18 (9th Cir. 1995). In Buchanan, the defendant pleaded guilty and agreed to waive his right to appeal if his sentence was within the prescribed Sentencing Guidelines range. Months later, he tried to withdraw his plea because it contained unfavorable stipulations. The district court told him that he could appeal his sentencing findings. Id. at 916. The next day, the court sentenced Buchanan and again told him that he had the right to appeal his sentence. Id. at 917. We reasoned that despite the written waiver, the defendant had a reasonable expectation of a right to appeal because of the district court judge s clear statements at sentencing, the defendant s assertion of understanding, and the prosecution s failure to object. Id. at 917 18. Since Buchanan, when a district court makes statements that contradict a defendant s prior waiver of his right to appeal, we have focused on both the court s statement and the UNITED STATES V . ARIAS-ESPINOSA 5 defendant s reasonable expectations about his rights. See United States v. Lopez-Armenta, 400 F.3d 1173, 1176 (9th Cir. 2005). For example, in Watson, the defendant s plea agreement included a waiver of his right to appeal, but at sentencing the court told the defendant, Take an appeal if you maybe it s waived. I don t know . . . . Now, you ve got a great lawyer. Maybe he ll find a way to get an appeal out of this. Watson, 582 F.3d at 987 88. We held that this ambivalent statement was not enough to render unenforceable the defendant s written waiver. Id. at 988. The district court s ambiguous advice did not alter the defendant s reasonable expectations regarding his waived right to appeal. Similarly, in United States v. Aguilar-Muniz, 156 F.3d 974, 977 (9th Cir. 1998), we held that the district court s admonition, [I]f you believe the waiver is unenforceable, you can present that theory to the appellate court, did not affect the waiver in the plea agreement. And we also held that a judge s comment that [i]t s up to the Ninth Circuit to decide whether under the circumstances [the defendant has] lost his right of appeal did not disturb the appellate waiver. United States v. Schuman, 127 F.3d 815, 817 (9th Cir. 1997). In reviewing whether a waiver should be enforced, we examine whether the district court s advice about a right to appeal was unambiguous, Lopez-Armenta, 400 F.3d at 1176, and without qualification, United States v. Jeronimo, 398 F.3d 1149, 1154 (9th Cir. 2005), overruled on other grounds by United States v. Jacobo Castillo, 496 F.3d 947, 957 (9th Cir. 2007) (en banc). Here, the district court s statement was ambiguous and did not negate the written waiver of the right to appeal. The 6 UNITED STATES V . ARIAS-ESPINOSA court told Arias-Espinosa that he may have a right to appeal. Cf. Buchanan, 59 F.3d at 917 ( [Y]ou have the right to appeal. ). The court s use of may introduced uncertainty into the statement. In common and legal usage, may reflects possibility, not certainty. See Webster s Third New International Dictionary of the English Language 1396 (1993); see also Black s Law Dictionary 1068 (9th ed. 2009). Accordingly, may is often conflated with might. Bryan A. Garner, Garner s Modern American Usage 529 (2009). Both words occupy different places on a continuum of possibility, and neither expresses certainty. Id. The court s equivocal statement indicating that Arias-Espinosa possibly has the right to appeal did not cancel his prior waiver. Also, the circumstances of Arias-Espinosa s plea show that the statement did not create confusion, LopezArmenta, 400 F.3d at 1177, or a reasonable expectation of a right to appeal, Buchanan, 59 F.3d at 917. Arias-Espinosa s counsel told him of the waiver, and Arias-Espinosa told the magistrate judge that he understood he was waiving his right to appeal. The magistrate judge s report likewise informed Arias-Espinosa that he had waived his right to appeal. The district court accepted the report and at this same hearing made the ambiguous statement regarding appellate rights. Viewed in context, the district court s statement is not similar to the unequivocal statements in Buchanan.1 Arias1 The district court s equivocal statement accurately reflects the law. Despite the waiver, under our precedent, Arias-Espinosa retained the ability to appeal in some circumstances even with a valid waiver. See United States v. Bibler, 495 F.3d 621, 624 (9th Cir. 2007) (waiver will not apply when 1) a defendant s guilty plea failed to comply with Fed. R. Crim. P. 11; 2) the sentencing judge informs a defendant that she retains the right to appeal; 3) the sentence does not comport with the terms of the plea agreement; or 4) the sentence violates the law ). UNITED STATES V . ARIAS-ESPINOSA 7 Espinosa s waiver of his right to appeal is not affected by the district court s statement at sentencing. Arias-Espinosa contends that a waiver is valid only if the government immediately objects to the court s advisement of a right to appeal and the sentencing judge acknowledges the presence of the waiver. United States v. Felix, 561 F.3d 1036, 1041 (9th Cir. 2009) (citing United States v. Zink, 107 F.3d 716, 718 (9th Cir. 1997)). But we required the government to object in Zink and Felix only because the district court made a clear statement that the defendant had the right to appeal. See Zink, 107 F.3d at 718 ( [T]he district court advised Zink that he had the right to appeal from the judgment of this court. (internal quotation omitted)); Felix, 561 F.3d at 1041 n.5 (the defendant s counsel and the district court both stated that the defendant had the right to appeal and the prosecutor did not object). Because the district court s statement here was ambiguous, the government was not required to object. We hold that the district court s statement that AriasEspinosa may have a right to appeal was equivocal or ambiguous, rather than being made unequivocally, clearly, and without qualification, and so does not vitiate his explicit waiver of the right to appeal in his written plea agreement. DISMISSED.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
