United States v. Domingo Jacobo Castillo

464 F.3d 988, 2006 U.S. App. LEXIS 24043, 2006 WL 2708603

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 22, 2006
• Docket: 05-30401
• Status: Published

Opinions

BEEZER, Circuit Judge:

Domingo Jacobo Castillo (“Jacobo”) pleaded guilty to one count of being an illegal alien in possession of a firearm in violation of 18 U.S.C. § 922(g)(5). He now appeals the denial of his pre-plea motion to suppress and argues that the delay between the discovery of the firearm and his indictment constitutes a violation of his Fifth Amendment due process rights. We lack jurisdiction over this appeal because Jacobo entered an unconditional guilty plea.

We have previously held that “an unconditional guilty plea constitutes a waiver of the right to appeal all nonjurisdictional antecedent rulings and cures all antecedent constitutional defects.” United States v. Lopez-Armenta, 400 F.3d 1173, 1175 (9th Cir.2005); see also United States v. Reyes-Platero, 224 F.3d 1112, 1115 (9th Cir.2000) (“[W]e do not have jurisdiction over the merits of appeals based upon pre-waiver constitutional defects, and we must dismiss that portion of the appeal.”); United States v. Floyd, 108 F.3d 202, 204 (9th Cir.1997) (“Unless [appellant’s] plea conformed with [Rule ll(a)(2)’s] specific requirements, we have no jurisdiction to hear her appeal.”); United States v. Carrasco, 786 F.2d 1452, 1453-54 (9th Cir.1986) (“We do not have jurisdiction to decide [appellant’s] appeal of the denial of the suppression motion unless she entered a valid conditional plea.”).¹

Jacobo did not enter a conditional plea pursuant to Fed.R.Crim.P. 11(a)(2) but plead unconditionally. That should have been the end of this appeal.

The government, however, does not argue that we lack jurisdiction due to Ja-cobo’s unconditional plea. The government’s silence presents the undecided question whether the government can waive the jurisdictional defect thereby allowing the court to decide the merits of the appeal. See, e.g., United States v. Schlesinger, 49 F.3d 483, 485 (9th Cir.1994) (“This court will not address waiver if not raised by the opposing party.”); United States v. Lewis, 798 F.2d 1250 (9th Cir.1986) amending United States v. Lewis, 787 F.2d 1318 (9th Cir.1986) (“Because the government failed to raise this question in its brief or at oral argument, we decline to address it.”).

We hold that the jurisdictional defect is not waivable and a defendant’s failure to preserve his appellate rights by entering a conditional plea pursuant to Rule 11(a)(2) deprives us of the authority to consider the merits of a claim.² As stated by the Supreme Court in Tollett v. Henderson:

[A] guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.

411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973). The Supreme Court clarified that the holding in Tollett was not a simple issue of waiver of the right to appeal but was based on the determination that:

[A] counseled plea of guilty is an admission' of factual guilt so reliable that, where voluntary and intelligent, it quite validly removes the issue of factual guilt from the case ... [and] factual guilt is a sufficient basis for the State’s imposition of punishment. A guilty plea, therefore, simply renders irrelevant those constitutional violations not logically inconsistent with the valid establishment of factual guilt and which do not stand in the way of conviction, if factual guilt is validly established.

Menna v. New York, 423 U.S. 61, 63 n. 2, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975). An unconditional guilty plea renders rulings on pretrial motions irrelevant and deprives appellate courts of the ability to reassess those rulings. See Lopez-Armenta, 400 F.3d at 1175 (“[A]n unconditional guilty plea ... cures all antecedent constitutional defects.”) (emphasis added). The government’s waiver cannot alter the “break in the chain of events” and create jurisdiction. See Torres v. Oakland Scavenger Co., 487 U.S. 312, 317 n. 3, 108 S.Ct. 2405, 101 L.Ed.2d 285 (1988) (“a litigant’s failure to clear a jurisdictional hurdle can never be ‘harmless’ or waived by a court”); Guzman-Andrade v. Gonzales, 407 F.3d 1073, 1077 (9th Cir.2005) (holding that jurisdiction cannot be created by the parties’ agreement through consent or stipulation and the parties cannot “waive its absence”).

In United States v. Rogers, 387 F.3d 925 (7th. Cir.2004), the Seventh Circuit considered the same issue and determined that an unconditional plea created a non-waiva-ble jurisdictional bar to appellate review. In Rogers, as in this case, the government did present the waiver argument in its briefs and addressed only the merits of the underlying constitutional claim. Id. at 934. The court concluded that despite the government’s waiver of the jurisdictional argument, it had no jurisdiction to consider the merits of appellant’s claims. Id. (citing cases).

Jacobo’s entry of an unconditional guilty plea deprives us of jurisdiction to consider his pre-plea constitutional claims.

DISMISSED.

Dissent by Judge BYBEE.

1 . A defendant may preserve material pretrial issues for appeal by entering a conditional plea pursuant to Federal Rule of Criminal Procedure 11(a)(2). The guilty plea is conditioned upon an appellate court's affirmance of the trial court's ruling on the pretrial motions. In the event that the defendant prevails on appeal, the plea is withdrawn. This procedure allows a defendant to preserve his right to appeal the pretrial rulings while avoiding the expense of a trial where acquittal is unlikely in light of the adverse rulings.

2 . This holding does not alter our conclusion in United States v. Garcia-Lopez, 309 F.3d 1121, 1122 (9th Cir.2002), where we held that the government may expressly “waive the waiver” of a defendant's right to appeal application of the sentencing guidelines where he had waived appellate rights in his plea agreement. In that case the waiver was a matter of contract between the government and the defendant and sentencing occurred after the plea. Appealing a sentencing issue does not impact the finding of guilt. See Reyes-Platero, 224 F.3d at 1115-16 (holding that the rule in Tollett only applies to pre-plea motions and does not eliminate jurisdiction for claims of constitutional error "occurring after the entry of a guilty plea”).