United States v. Antonio Baltazar-Neri

540 F. App'x 630

Opinions

MEMORANDUM

Footnotes

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Antonio Baltazar-Neri appeals the sentence imposed following his guilty plea to illegal re-entry after deportation in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291. We vacate and remand for resentencing.

1. The government conceded that Bal-tazar-Neri was not previously convicted of a “burglary of a dwelling,” as that phrase is used in U.S.S.G. § 2L1.2, and therefore should not have received a sixteen-level enhancement. The government contends, however, that Baltazar-Neri’s plea agreement waived his right to appeal the enhanced sentence.

2. We review de novo the validity of an appeal waiver. United States v. Buchanan, 59 F.3d 914, 916 (9th Cir.1995). In that review, we “determine what the defendant reasonably understood to be the terms of the agreement when he pleaded guilty.” United States v. De la Fuente, 8 F.3d 1333, 1337 (9th Cir.1993) (footnote omitted).

3. Although the plea agreement in this case contains language waiving the right to appeal, it also states that “objections” to the sentence imposed by the district court are waived only if “the sentence is consistent with this agreement.” The sixteen-level enhancement is “consistent” with the plea agreement only if Baltazar-Neri was previously convicted of burglary of a dwelling. The government argues that the plea agreement allowed Baltazar-Neri to object to the improper characterization of his criminal record before the district court, not on appeal. Although that reading of the plea agreement is not implausible, when, as here, the government drafted the agreement, any ambiguities are construed in favor of the defendant. United States v. Cope, 527 F.3d 944, 950 (9th Cir.2008). Because the language preserving the right to object to a sentence is not expressly limited to objections before the district court, we conclude that Baltazar-Neri did not unambiguously waive his right to appeal.

VACATED and REMANDED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.