United States v. Angela Ruiz ( 2001 )

Opinion by Judge BOOCHEVER; Concurrence by Judge TASHIMA; Dissent by Judge TALLMAN

BOOCHEVER, Circuit Judge:

Angela Ruiz (“Ruiz”) appeals from the sentence imposed by the district court after she pled guilty to charges of marijuana importation. Ruiz challenges the Government’s refusal to recommend, and the district court’s denial of, a downward departure from the applicable sentencing guideline range under the “fast track” program. We reverse and remand.

BACKGROUND

Ruiz was arrested for importing marijuana from Mexico into the United States. The Government offered a plea bargain which, among other things, provided for a two-level downward departure from the otherwise applicable sentencing guideline range under the “fast track” program. The United States Attorney’s Office for the Southern District of California adopted the “fast track” program to minimize the expenditure of government resources and expedite the processing of more routine cases. Plea bargains offered under this program require defendants to plead guilty, as well as waive their rights to an indictment, to an appeal, and to present motions. Defendants must also waive their rights to receive certain information pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). In exchange, the Government promises to recommend a two-level downward departure to the sentencing judge.¹

According to Ruiz, she declined to accept the plea bargain because it contained an unconstitutional waiver of Brady rights. She subsequently pled guilty to the charges with no plea agreement. At the sentencing hearing, Ruiz requested several downward departures, including a two-level “fast track” departure. The Government opposed the request. Ruiz claimed that she nevertheless qualified for the departure because, aside from refusing to waive her Brady rights, she substantially complied with the requirements of the “fast track” program (e.g., entering an early guilty plea and declining to file motions). Ruiz also argued that the Government opposed the “fast track” request only because she refused to enter into a plea agreement containing an unconstitutional waiver of her Brady rights.

The district court denied the downward departure because the Government provided no “fast track” recommendation and no plea agreement required the Government to do otherwise. Ruiz’s sentencing range was 18-24 months. Had Ruiz received the two-level “fast track” departure, the range would have been 12-18 months. The district court sentenced Ruiz to 18 months.

DISCUSSION

Ruiz argues that the Government’s refusal to recommend a two-level “fast track” departure was unconstitutional. At the center of Ruiz’s appeal is the contention that the right to receive undisclosed Brady evidence cannot be waived through plea agreements. Ruiz argues that, because Brady rights are not waivable, prosecutors cannot condition the benefits of a plea bargain (e.g., a “fast track” recommendation) on the waiver of such rights; or, stated alternatively, prosecutors cannot withhold the benefits of a plea bargain simply because a defendant refuses to waive her unwaivable Brady rights. According to Ruiz, the Government withheld the “fast track” recommendation for this unconstitutional reason and, therefore, the district court had authority to provide a remedy (e.g., grant the two-level “fast track” departure on its own).

Ruiz asks this court to vacate her sentence and remand the case so the district court may determine whether the Government acted with an unconstitutional motive and, if so, whether it should exercise its discretion to provide a remedy for the violation.

I. Appellate Jurisdiction

As an initial matter, the Government contends that we lack jurisdiction over Ruiz’s appeal. The Government argues that its refusal to recommend a “fast track” departure and the district court’s denial of Ruiz’s request for the same are not reviewable. We disagree.

The statute governing a defendant’s right to appeal a federal sentence, 18 U.S.C. § 3742(a), provides in relevant part:

A defendant may file a notice of appeal in the district court for review of an otherwise final sentence if the sentence-

(1) was imposed in violation of law;

(2) was imposed as a result of an incorrect application of the sentencing guidelines!.]

As a general rule, under 18 U.S.C. § 3742, we cannot review a district court’s discretionary denial of a defendant’s request for a downward departure from the sentencing guidelines. United States v. Morales, 898 F.2d 99, 102 (9th Cir.1990). This general rule of nonreview-ability, however, does not insulate any and all decisions by district courts to reject downward departures. It only precludes appellate review of the court’s exercise of discretion in such matters. See id. (decision to deny departure not reviewable because it “was an act of discretion”). Claims that the district court failed to exercise any discretion at all in rejecting a downward departure are reviewable. United States v. Cervantes-Valenzuela, 931 F.2d 27, 29 (9th Cir.1991) (per curiam). Also, we have jurisdiction over claims that the district court rested its decision not to depart on an erroneous belief that it lacked authority to do so. United States v. Eaton, 31 F.3d 789, 793 (9th Cir.1994).

Jurisdiction is also proper over constitutional challenges to the sentencing process, like the challenge Ruiz brings here. See, e.g., United States v. Khoury, 62 F.3d 1138, 1140-41 (9th Cir.1995) (holding that appellate courts have jurisdiction over constitutional challenges to government’s refusal to recommend and district court’s denial of downward departure); United States v. Arishi, 54 F.3d 596, 597-98 (9th Cir.1995) (same); see also Wade v. United States, 504 U.S. 181, 112 S.Ct. 1840, 118 L.Ed.2d 524 (1992) (exercising jurisdiction over similar claim); United States v. Mikaelian, 168 F.3d 380, 384 (9th Cir.1999) (same); United States v. Murphy, 65 F.3d 758, 762-64 (9th Cir.1995) (same); United States v. Treleaven, 35 F.3d 458, 460-61 (9th Cir.1994) (same).

Although the above cases do not expressly state that constitutional challenges are reviewable under section 3742(a)(1) as claims that the sentence was “imposed in violation of law,” other circuits have articulated this sensible rationale. See, e.g., United States v. Senn, 102 F.3d 327, 331 (7th Cir.1996) (constitutional claim that prosecutor arbitrarily refused to recommend greater downward departure satisfies “violation of law” standard of section 3742(a)); United States v. Graham, 72 F.3d 352, 358 n. 8 (3rd Cir.1995) (constitutional claim that prosecutor tainted sentencing hearing by introducing undisclosed allegations satisfies “violation of law” standard); United States v. Holmes, 60 F.3d 1134, 1137 (4th Cir.1995) (constitutional claim that district court sentenced defendant at top of guideline range because victims were black was claim that sentence was “imposed in violation of law”); see also United States v. Drown, 942 F.2d 55 (1st Cir.1991) (“When a defendant unsuccessfully challenges not the judge’s exercise of discretion but the constitutionality of the scheme under which he was sentenced, the court of appeals has appellate jurisdiction under 18 U.S.C. § 3742(a)(1).”).

For the foregoing reasons, we conclude that a constitutional challenge to a prosecutor’s refusal to recommend a downward departure, and a district court’s refusal to grant such a departure, is appealable under 18 U.S.C. § 3742(a)(1) as a claim that the sentence was “imposed in violation of law.” Therefore, we have jurisdiction over Ruiz’s constitutional challenge to the Government’s refusal to recommend a “fast track” departure and the district court’s refusal to grant the same.²

The Government argues in the alternative (and the dissent would agree) that, by pleading guilty, Ruiz forfeited her right to challenge' the constitutionality of the Brady waiver contained in the plea bargain she rejected before entering her guilty plea. Generally, an unconditional guilty plea extinguishes the right to appeal all rulings and constitutional defects preceding the plea. United States v. Broce, 488 U.S. 563, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989).

The Government mischaraeterizes Ruiz’s appeal. Ruiz claims that the Government violated her constitutional rights after she pled guilty. Specifically, she asserts that the Government unconstitutionally refused to recommend the “fast track” departure at the sentencing hearing. As the alleged constitutional violation from which Ruiz seeks relief did not occur until after the guilty plea, Ruiz is entitled to seek review. We recognize that, to prevail on her downward departure claim, Ruiz must show that the Brady waiver contained in the rejected plea agreement is unconstitutional. However, this showing is only relevant as evidence that the Government acted with an unconstitutional motive at the sentencing hearing.

The Government also suggests that Ruiz’s appeal must fail because Ruiz is trying to enforce the terms of a plea bargain (ie., the two-level “fast track” departure) which she rejected. Again, the Government mischaraeterizes Ruiz’s appeal. Ruiz is not attempting to enforce the rejected plea agreement as a contract. As discussed above, she brings a constitutional challenge to the Government’s refusal to recommend a downward departure from the sentencing guidelines. The rejected plea agreement, with the two-level “fast track” departure and the Brady waiver, is merely evidence of the Government’s allegedly impermissible motive.

II. Constitutionality of the Government’s Refusal to Recommend the “Fast Track” Departure

Ruiz argues that the Government unconstitutionally refused to recommend a “fast-track” departure. Specifically, Ruiz contends that: (1) the right to receive undisclosed Brady evidence is not subject to waiver through plea agreements, (2) prosecutors cannot withhold a “fast track” recommendation simply because a defendant declines to waive her Brady rights, and (3) the Government here withheld the “fast track” recommendation for this. reason. We address each argument in turn.

A. Validity oí Brady Waiver

The plea agreement offered by the Government contained a waiver of certain rights under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). In Brady, the Supreme Court held that the Due Process Clause requires prosecutors to disclose evidence that is material and favorable to the defendant. Ruiz argues that defendants cannot voluntarily and intelligently waive the constitutional right to receive undisclosed Brady evidence and, therefore, any such waiver is invalid. We review the validity of a waiver contained in a plea agreement de novo. United States v. Martinez, 143 F.3d 1266, 1270 (9th Cir.1998).

1. Waiver of Brady Rights in General

Some constitutional rights are automatically waived by entering an unconditional guilty plea. Such rights include, among others, the right to a jury trial, the right to confront one’s accusers, and the right to invoke the privilege against self-incrimination, McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969), as well as the right to challenge constitutional defects which occur before entry of the plea. Broce, 488 U.S. at 573-74, 109 S.Ct. 757.

Of the rights that survive entry of a guilty plea, some still may be expressly waived through plea agreements. For example, defendants generally may agree to waive the right to appeal the sentence, United States v. Baramdyka, 95 F.3d 840, 843 (9th Cir.1996), and the right to file a civil suit under 42 U.S.C. § 1983 seeking redress for government violations of constitutional rights. Newton v. Rumery, 480 U.S. 386, 397-98, 107 S.Ct. 1187, 94 L.Ed.2d 405 (1987).

Some rights, however, can never be waived. For example, a plea agreement cannot bar defendants from asserting “claims involving a breach of the plea agreement, racial disparity in sentencing among codefendants or an illegal sentence imposed in excess of a maximum statutory penalty.” Baramdyka, 95 F.3d at 843. Nor can defendants waive the right to a unanimous jury verdict, United States v. Ullah, 976 F.2d 509, 512 (9th Cir.1992), or a speedy trial. United States v. Lloyd, 125 F.3d 1263, 1268 (9th Cir.1997).

Ruiz argues that the due process right to receive undisclosed Brady information falls into the category of rights that can never be waived. Although no court has addressed whether Brady rights are waivable through plea agreements, we have determined that Brady rights are not automatically waived by entry of a guilty plea. In Sanchez v. United States, 50 F.3d 1448 (1995), we held that guilty pleas “cannot be deemed intelligent and voluntary if entered without knowledge of material information withheld by the prosecution.” Id. at 1453 (quotation marks omitted). We reasoned that “a defendant’s decision whether or not to plead guilty is often heavily influenced by his appraisal of the prosecution’s case.” Id. (quotation marks omitted). Also, we explained that “if a defendant may not raise a Brady claim after a guilty plea, prosecutors may be tempted to deliberately withhold exculpatory information as part of an attempt to elicit guilty pleas.” Id.

The rationale of Sanchez applies with equal force to plea agreements. Plea agreements, like guilty pleas, must be entered voluntarily and intelligently to satisfy due process requirements. See Baramdyka, 95 F.3d at 843; United States v. Navarro-Botello, 912 F.2d 318, 321-22 (9th Cir.1990). The disclosure of Brady evidence is just as important in ensuring the voluntary and intelligent nature of a plea bargain as it is in ensuring the voluntary and intelligent nature of a guilty plea. In both situations, the defendant’s decision “is often heavily influenced by his appraisal of the prosecution’s case.” Sanchez, 50 F.3d at 1453. Moreover, the same prosecutorial incentive to withhold Brady information that would arise if guilty pleas extinguished Brady rights, would arise if plea agreements could extinguish those rights. See id. Therefore, plea agreements, and any waiver of Brady rights contained therein, “cannot be deemed intelligent and voluntary if entered without knowledge of material information withheld by the prosecution.” Id. (quotation marks omitted).³

Other circuits have applied the same rationale to bar waivers of ineffective assistance of counsel claims associated with the negotiation of plea agreements. Claims of ineffective assistance of counsel, like claims based on the failure to disclose Brady evidence, challenge the voluntary and intelligent nature of the plea agreement. As the Eighth Circuit recently explained, a “decision to enter into a plea agreement cannot be knowing and voluntary when the plea agreement itself is the result of advice outside the range of competence!;.]” DeRoo v. United States, 223 F.3d 919, 923-24 (8th Cir.2000) (quotation marks omitted). Therefore, “ ‘[j]ustice dictates that a claim of ineffective assistance of counsel in connection with the negotiation of [an] agreement cannot be barred by the agreement itself — the very product of the alleged ineffectiveness.’ ” Id. (quoting Jones v. United States, 167 F.3d 1142, 1145 (7th Cir.1999)); see also United States v. Cockerham, 237 F.3d 1179, 1187 (10th Cir.2001) (waiver in plea agreement cannot bar ineffective assistance of counsel claims associated with negotiation of agreement); United States v. Henderson, 72 F.3d 463, 465 (5th Cir.1995) (waiver of appeal does not bar “claim that the plea agreement generally, and the defendant’s waiver of appeal specifically, were tainted by ineffective assistance of counsel”); United States v. Craig, 985 F.2d 175, 178 (4th Cir.1993) (same).⁴

For the same reason courts have concluded that the ineffective assistance of counsel during plea negotiations invalidates the plea agreement, we conclude that the failure to disclose Brady evidence also invalidates the plea agreement. In both cases, by definition, the defendant cannot accept the plea agreement intelligently and voluntarily as required by due process. Without an intelligent and voluntary acceptance, the plea agreement cannot be valid. If the plea agreement is invalid, all waivers contained in the plea agreement, including the waiver of the right to receive undisclosed Brady evidence, must also be invalid. The “waiver [can]not bar claims that relate to the validity of the waiver itself.” United States v. Racich, 35 F.Supp.2d 1206, 1210 (N.D.Cal.1999), aff'd, 215 F.3d 1335 (9th Cir.2000).⁵

The Government contends that a plea agreement’s waiver of the right to receive undisclosed Brady evidence satisfies the voluntary and intelligent requirement because, unlike the entry of a guilty plea, a plea agreement ensures that the defendant is aware of the rights being waived. In Sanchez, however, it was not the government’s failure to disclose the right to Brady evidence that we found rendered guilty pleas involuntary and unintelligent; it was the failure to disclose the actual Brady evidence. See Sanchez, 50 F.3d at 1454. A defendant’s abstract awareness of her rights under Brady is a pale substitute for the receipt of concrete Brady material which, for example, may include evidence that the arresting officer was twice convicted of perjury or that another suspect confessed to the crime. Without disclosure of the Brady evidence itself, the plea agreement and the Brady waiver contained therein cannot be intelligent and voluntary. Therefore, we conclude that a defendant’s right to receive undisclosed Brady material cannot be waived through a plea agreement and that any such waiver is invalid.

2. Waiver of Impeachment Evidence

The Government argues that, even if a waiver of all Brady rights is invalid, the plea agreement at issue here is still valid because it only waives some Brady rights. In. particular, the plea agreement’s waiver only applies to impeachment evidence, ie., Brady information relating to the credibility of government witnesses. It does not apply to exculpatory evidence, i.e., Brady information relating to the factual innocence of the defendant. The waiver provides:

WAIVER OF RIGHT TO BE PROVIDED WITH IMPEACHMENT AND AFFIRMATIVE DEFENSE INFORMATION

The Government represents that any ■ information establishing the factual innocence of the defendant known to the undersigned prosecutor in this case has been turned over to the defendant. The Government understands it has continuing duty to provide such information establishing factual innocence of the defendant.

The defendant understands that if this case proceeded to trial, the Government would be required to provide impeachment information relating to any informants or other witnesses. In addition, if the defendant raised an affirmative defense, the Government would be required to provide information in its possession that supports such a defense. In return for the Government’s promises set forth in this agreement, the defendant waives the right to this information, and agrees not to attempt to withdraw the guilty plea or to file a collateral attack based on the existence of this information.

The Brady rule encompasses impeachment evidence as well as exculpatory evidence. United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). The Government contends that impeachment evidence is only relevant if there is going to be a trial. Therefore, according to the Government, it need not disclose such evidence at the pretrial, plea bargain stage. In Bagley, however, the Supreme Court declined to recognize any meaningful difference between these two types of Brady evidence. “This Court has rejected any such distinction between impeachment evidence and exculpatory evidence .... When the reliability of a given witness may well be determinative of guilt or innocence, nondisclosure of evidence affecting credibility falls within th[e] general rule [of Brady V’ Id. at 676-677, 105 S.Ct. 3375 (quotation marks omitted).

Moreover, nothing in Sanchez suggests that only exculpatory evidence must be disclosed before the entry of a guilty plea. In Sanchez, we held that prosecutors must disclose Brady material before a defendant enters a guilty plea, without drawing a distinction between exculpatory and impeachment evidence. 50 F.3d at 1453. Nor would such a distinction make much sense. In the context of guilty pleas, the government is only required to disclose evidence favorable to the defendant if it is “material.” Id. Evidence is “material” if “there is a reasonable probability that but for the failure to disclose the Brady material, the defendant would have refused to plead and would have gone to trial.” Id. at 1454. We see no reason why prosecutors should be permitted to withhold “material” impeachment evidence when disclosure of such evidence would create a reasonable probability the defendant would reject the plea agreement.

' The principal case upon which the Government relies, United States v. Gordon, 844 F.2d 1397 (9th Cir.1988), is consistent with this conclusion. In Gordon, we held that prosecutors must disclose Brady information “at a time when disclosure would be of value to the accused.” Id. at 1403 (quotation marks omitted). Applying this principle in the context of a trial, we determined that the prosecution was required to disclose the impeachment evidence while the accused still had an opportunity to impeach the testifying witness. Id. This does not mean, as the Government contends, that impeachment evidence is only valuable if there is going to be a trial. It simply means that, if there is going to be a trial, impeachment evidence, like exculpatory evidence, must be disclosed while it still is valuable.

When there is not going to be a trial, however, as in the context of plea bargaining, Brady evidence is only valuable to the accused if it is disclosed before acceptance of the plea agreement. See Sanchez, 50 F.3d at 1454 (“the decision whether or not to plead guilty is often heavily influenced by [the defendant’s] appraisal of the prosecution’s case”). Accordingly, we reject the Government’s argument that it need only disclose impeachment evidence if there is going to be a trial, and we conclude that the limited Brady waiver contained in the Government’s plea agreement is invalid.

This conclusion, however, does not by itself entitle Ruiz to relief. She must also demonstrate that, as a legal matter, it is unconstitutional or arbitrary for prosecutors to oppose a downward departure based on a defendant’s refusal to waive Brady rights. Finally, Ruiz must show that, as a factual matter, the Government opposed the downward departure for this reason.

B. Constitutionality of Opposing Downward Departure Based on Defendant’s Refusal to Waive Brady Rights

Prosecutors cannot withhold a recommendation for a downward departure on the basis of an unconstitutional motive (e.g., racial or religious discrimination) or arbitrarily (ie., for reasons not rationally related to any legitimate governmental interest). Wade v. United States, 504 U.S. 181, 185-86, 112 S.Ct. 1840, 118 L.Ed.2d 524 (1992); see also United States v. Treleaven, 35 F.3d 458, 461 (9th Cir.1994) (relief appropriate if “the government’s refusal to move for a downward departure was based on impermissible motives, constituted a breach of a plea agreement, or was not rationally related to any legitimate government purpose”).⁶

Ruiz contends that the Government acted with an unconstitutional motive in refusing to recommend a “fast track” departure at her sentencing hearing. Ruiz argues that, because Brady rights are not waivable, the Government cannot legitimately withhold the benefits of a departure recommendation based on Ruiz’s refusal to waive these rights. The Government suggests that conditioning a plea agreement on the waiver of Brady rights is nevertheless proper because Ruiz was always free to reject the agreement.

It is true that “incentives for plea bargaining are not unconstitutional merely because they are intended to encourage a defendant to forego constitutionally protected conduct.” United States v. Villasenor-Cesar, 114 F.3d 970, 975 (9th Cir.1997) (internal alterations, quotation marks omitted). This general rule, however, does not mean prosecutors may, for any reason, withhold discretionary benefits offered in a rejected plea bargain. See, e.g., Khoury, 62 F.3d at 1141-43 (government cannot vindictively withhold departure recommendation simply because defendant rejected plea bargain and exercised right to trial).

More importantly, ’ the general rule that prosecutors may encourage the waiver of constitutional rights is premised on the assumption that the targeted rights may be validly waived. See, e.g., United States v. Murphy, 65 F.3d 758 (9th Cir.1995) (involving incentives to forgo waivable right to trial). Here, in contrast, the due process right to receive undisclosed Brady material cannot be waived without offending another due process requirement, namely, that plea agreements be entered voluntarily and intelligently. Because Brady waivers are themselves unconstitutional, we conclude it is unconstitutional for prosecutors to withhold a departure recommendation based on a defendant’s refusal to accept such a waiver.

C. Evidence of Improper Motive

Ruiz must also make a “substantial threshold showing” by producing evidence that the Government, in fact, acted with an unconstitutional motive in refusing to move for a downward departure. See Wade, 504 U.S. at 186, 112 S.Ct. 1840. If Ruiz succeeds in making this showing, she would be entitled to an evidentiary hearing on remand regarding the Government’s motives. Id. If the district court on remand determines that the Government acted with an unconstitutional motive, then it may, in its discretion, provide a remedy for the violation (e.g., grant Ruiz’s request for the “fast track” departure). See id. at 185-86, 112 S.Ct. 1840.

As discussed above, Ruiz argues that the Government opposed the “fast track” departure because she refused to waive her Brady rights. To show the Government was motivated by this impermissible consideration, Ruiz’s counsel represented in the sentencing memorandum, at the sentencing hearing, and in the briefs on appeal, that Ruiz rejected the plea bargain only because it contained the Brady waiver. The Government argues that no admissible evidence supports Ruiz’s claim that she rejected the plea bargain for this reason. The district court did not make any factual findings regarding the motives of Ruiz or the Government.

It is undisputed, however, that the plea bargain offered by the Government contained a waiver of certain Brady rights, that Ruiz rejected that plea bargain, and that the Government opposed the “fast track” departure because no plea bargain obligated it to do otherwise. The district court denied Ruiz’s request for a “fast track” departure due to the absence of any plea agreement providing that benefit. We find that this showing, combined with defense counsel’s consistent representations to the sentencing judge that Ruiz declined the plea bargain only because it contained a Brady waiver, is sufficient to warrant an evidentiary hearing to determine whether the Government declined to recommend a “fast track” departure because Ruiz refused to waive her Brady rights.⁷

The Government also argues that even if it opposed the departure because Ruiz refused to waive her Brady rights, the district court rejected her request for an altogether different reason. Specifically, the Government contends that the district court denied Ruiz’s request for the “fast track” departure because it believed that, without a plea agreement, Ruiz did not qualify for the departure. A district court’s denial of a downward departure on this basis, however, does not insulate a prosecutor’s underlying improper motive for failing to recommend a departure. See Wade, 504 U.S. at 185-86, 112 S.Ct. 1840 (district court precluded from denying downward departure based on government’s refusal to recommend it if government did so for unconstitutional reasons).

We find that Ruiz has made a substantial threshold showing that the Government acted with an unconstitutional motive in refusing to recommend the “fast track” departure. Accordingly, Ruiz is entitled to an evidentiary hearing on remand concerning her constitutional claim.

CONCLUSION

We vacate Ruiz’s sentence and remand the case for resentencing. On remand, the district court shall conduct an evidentiary hearing to determine whether the Government withheld the “fast track” recommendation because Ruiz refused to waive her Brady rights. If the district court finds that the Government acted, at least in part, for this reason, it must then determine in its discretion whether to provide a remedy for the violation.

REVERSED AND REMANDED.

1 . Elsewhere, we have more fully described the operation of and the policies behind the "fast track” program. See United States v. Ramirez-Cortez, 213 F.3d 1149 (9th Cir.2000); United States v. Estrada-Plata, 57 F.3d 757 (9th Cir.1995).

2 . The Government does not argue that we are divested of jurisdiction because the district court understood it could grant the “fast track” departure without a government recommendation. Nevertheless, the dissent would conclude jurisdiction is lacking on this basis. We decline to accept the dissent's reading of the record. At the sentencing hearing, the district court expressed its belief with sufficient clarity that, because Ruiz rejected the Government's plea agreement, it lacked the power to grant the "fast track” departure. It stated, "Counsel, isn't your plea bargain a matter of contract that's an offer and acceptance? ... And if you don't accept it, that's a decision you have to make. And if you do, the Government is bound by it.” In fact, the Government confirms in its opposition brief that “[t]he district court simply pointed out that the proposed plea agreement was a contract that Ruiz did not enter into, and therefore, the unaccepted benefits were not available.” Moreover, even if the district court had understood that "the absence of [government] consent does not constitute an absolute and categorical bar to departure” under the "fast track” program, see United States v. Rodriguez-Lopez, 198 F.3d 773, 775-76 (9th Cir.1999), we doubt such a general understanding would entitle the district court to ignore a defendant’s specific constitutional challenge to the sentencing process and preclude appellate review of the same.

3 . Commentators analyzing this issue have followed the same logic and reached the same conclusion. See Daniel P. Blank, Plea Bargain Waivers Reconsidered: A Legal Pragmatist's Guide to Loss, Abandonment and Alienation, 68 Fordham L.Rev.2011, 2085 (2000) ("[B]ecause preplea disclosure [of Brady material] is required to ensure that a guilty plea comports with due process, then it cannot be waived without the plea itself being invalidated.”); Erica G. Franklin, Comment, Waiving Prosecutorial Disclosure in the Guilty Plea Process: A Debate on the Merits of “Discovery” Waivers, 51 Stan. L.Rev. 567, 581 (1999) (waiver of Brady rights can never be intelligent and knowing because "the waiver, by definition, assures that the defendant can never know what he is waiving”).

4 . We have expressed our approval of this conclusion in dicta. See United States v. Pruitt, 32 F.3d 431, 433 (9th Cir.1994) ("We doubt that a plea agreement could waive a claim of ineffective assistance of counsel based on counsel's erroneously unprofessional inducement of the defendant to plead guilty or accept a particular plea bargain.”); United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir.1992) (stating that express waiver of appeal does not categorically foreclose claim based on ineffective assistance of counsel or involunlariness of waiver); see also Baramdyka, 95 F.3d at 844 (following Pruitt).

5 . The same principle apples to claims of incompetence. A defendant who is incompetent cannot "knowingly or intelligently 'waive' his right to have the court determine his capacity to stand trial.” Pate v. Robinson, 383 U.S. 375, 384, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966).

6 . The Government, as well as the dissent, suggest that this rule only applies to downward departure recommendations based on a defendant’s "substantial assistance” to the government and does not apply to recommendations under the “fast track” program. Although the facts in Wade involved a "substantial assistance” recommendation, the Supreme Court reaffirmed that prosecutorial decisions in general are subject to constitutional limitations. In concluding that prosecutors cannot withhold "substantial assistance” recommendations for unconstitutional or arbitrary reasons, the Court explained, "[W]e see no reason why courts should treat a prosecutor’s refusal to file a substantial-assistance motion differently from a prosecutor’s other decisions.” Wade, 504 U.S. at 185, 112 S.Ct. 1840. Likewise, we see no reason why courts should treat a prosecutor’s refusal to file a "fast track” motion differently from a prosecutor's other decisions.

7 . The dissent would hold that Ruiz failed to make a "substantial threshold showing” because "there were other highly plausible, and more likely reasons why the prosecutor refused to move for the departure.” Dissent at 2767, 2768. Nevertheless, based on the evidence presented, it is also plausible that the Government declined to make the "fast track” recommendation because Ruiz refused to waive her right to undisclosed Brady material. Ruiz need not demonstrate anything more to make a "substantial threshold showing” and secure the right to an evidentiary hearing on remand regarding this matter. See Wade, 504 U.S. at 186, 112 S.Ct. 1840.

The dissent also would hold that the constitutionality of the Government’s Brady waiver "is wholly irrelevant to whether the prosecutor acted with an unconstitutional motive at sentencing.” Dissent at 2769. However, if the Brady waiver were constitutional, Ruiz would have no basis for arguing that the Government withheld the "fast track” recommendation for an unconstitutional reason. See Murphy, 65 F.3d at 763 (finding no unconstitutional motive when prosecutor conditioned recommendation on waiver of waiva-ble right to jury trial because no additional showing of prosecutorial vindictiveness). Therefore, the question of whether the Brady waiver is constitutional is not only relevant, it is integral to the determination of whether Ruiz has presented a "substantial threshold showing” that the Government acted with an impermissible motive.