United States v. Francisco Gutierrez

FILED
NOT FOR PUBLICATION MAY 23 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-10316
Plaintiff - Appellee, D.C. No. 4:09-cr-02110-DCB-
BPV-1
v.
FRANCISCO DE JESUS GUTIERREZ, MEMORANDUM*
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
David C. Bury, District Judge, Presiding
Submitted May 13, 2011**
San Francisco, California
Before: O’SCANNLAIN and GOULD, Circuit Judges, and ST. EVE, District
Judge.***
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Amy J. St. Eve, United States District Judge for the
Northern District of Illinois, sitting by designation.
Defendant-Appellant Francisco De Jesus Gutierrez appeals the judgment of
the district court on the ground that he did not knowingly and voluntarily plead
guilty. We have jurisdiction under 28 U.S.C. § 1291, and we dismiss the appeal as
waived.
Gutierrez contends that he did not knowingly and voluntarily enter into the
agreement to plead guilty and to waive his appeal rights in exchange for a
sentencing-level reduction. If the agreement was not knowing and voluntary, the
waiver of appeal is unenforceable. United States v. Portillo-Cano, 192 F.3d 1246,
1250 (9th Cir. 1999). On the other hand, if the agreement was knowing and
voluntary, the waiver of appeal must be honored and we must dismiss the appeal.
Id.Gutierrez’s decision to plead guilty at the beginning of his trial represented a
voluntary and intelligent choice among the courses of action open to him. See
United States v. Kaczynski, 239 F.3d 1108, 1114 (9th Cir. 2001) (“A plea is
voluntary if it ‘represents a voluntary and intelligent choice among the alternative
courses of action open to the defendant.’” (quoting North Carolina v. Alford, 400
U.S. 25, 31 (1970))). Nothing in the record suggests that Gutierrez did not
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knowingly and voluntarily agree to plead guilty. Nor is there any indication that
defense counsel’s performance was prejudicially deficient.1
Gutierrez knowingly and voluntarily entered the sentencing agreement,
which included a waiver of appeal. The scope of the waiver covers the right to
appeal on the grounds raised. Accordingly, we dismiss. See United States v.
Watson, 582 F.3d 974, 985–88 (9th Cir. 2009).
DISMISSED.
1
As a general rule, we do not review challenges to the effectiveness of
counsel on direct appeal. United States v. Jeronimo, 398 F.3d 1149, 1155 (9th Cir.
2005), abrogated on other grounds by United States v. Jacobo Castillo, 496 F.3d
947, 957 (9th Cir. 2007) (en banc). We leave open the possibility that Gutierrez
might pursue an ineffective assistance of counsel claim though a habeas petition,
despite language in the waiver of appeal that seems to bar any collateral attack,
including petitions brought under 28 U.S.C. § 2255. Because that issue is not
presented here, we need not decide “whether even an express waiver of all § 2255
rights could be enforced to preclude an ineffective assistance claim implicating the
voluntariness of the waiver itself.” Id. at 1156 n.4.
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