United States v. Fulvio Desantiago-Martinez

980 F.2d 582, 92 Daily Journal DAR 15795, 92 Cal. Daily Op. Serv. 9497, 1992 U.S. App. LEXIS 30912, 1992 WL 341630

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 25, 1992
• Docket: 92-50373
• Status: Published

Opinions

Fulvio DeSantiago-Martinez appeals his sentence, which was imposed after he pleaded guilty pursuant to the terms of a written plea agreement. The government now moves t.o dismiss the appeal on the ground that the plea agreement contains an express waiver of the right to appeal the sentence. We dismiss.

“[A]n express waiver of the right to appeal in a negotiated plea of guilty is valid if knowingly and voluntarily made.” United States v. Bolinger, 940 F.2d 478, 480 (9th Cir.1991); United States v. Navarro-Botello, 912 F.2d 318, 319, 321-22 (9th Cir.1990), cert. denied, — U.S. -, 112 S.Ct. 1488, 117 L.Ed.2d 629 (1992). A review of the record demonstrates that De-Santiago’s express waiver satisfies the knowing and voluntary requirement. The waiver explicitly states that DeSantiago is aware of his right to appeal under 18 U.S.C. § 3742(a) and that he expressly waives that right. The agreement is simple and clear, DeSantiago had the agreement read to him in Spanish, and DeSantia-go had discussed the agreement with his lawyer.

DeSantiago argues that he did not waive his right to appeal the sentence because the district court failed to advise him of this waiver at the Rule 11 guilty plea hearing. We reject this argument. In our view, a Rule 11 colloquy on the waiver of the right to appeal is not a prerequisite to a finding that the waiver is valid; rather, a finding that the waiver is knowing and voluntary is sufficient. See generally Bolinger, 940 F.2d at 480; Navarro-Botello, 912 F.2d at 321-22; see also United States v. Davis, 954 F.2d 182, 186 & n. 1 (4th Cir.1992) (while district court “would be well advised to specifically discuss with a defendant, during the Rule 11 proceeding, any waiver of appellate rights contained in the defendant’s plea agreement,” such discussion is not necessary prerequisite to finding of knowing and voluntary waiver).

DeSantiago also argues that he did not waive his right to appeal because the district court failed to comply with Fed. R.Crim.P. 32(a)(2), which requires that the court advise a defendant of any right to appeal his sentence. In the plea agreement, DeSantiago was explicitly advised of his right to appeal, however, and thus this argument lacks merit.

DISMISSED.