United States v. Eduardo Arias-Espinosa , 704 F.3d 616 ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA , No. 11-10663
Plaintiff - Appellee,
D.C. No.
v. 4:11-cr-02189-DCB-
GEE-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. Arias-
Espinosa, 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,” Lopez-
Armenta, 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 Arias-
1
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 Arias-
Espinosa “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.