FILED

NOT FOR PUBLICATION SEP 19 2013

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 12-10444

Plaintiff - Appellee, D.C. No. 4:11-cr-03230-DCB-

BGM-1

v.

ANTONIO BALTAZAR-NERI, AKA MEMORANDUM*

Antonio Neri Baltazar,

Defendant - Appellant.

Appeal from the United States District Court for the District of Arizona David A. Ezra, District Judge, Presiding

Argued and Submitted August 13, 2013 San Francisco, California

Before: GRABER, BEA, and HURWITZ, Circuit Judges.

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.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. 1. The government conceded that Baltazar-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.

2 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.

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FILED

United States v. Baltazar-Neri, 12-10444 SEP 19 2013

MOLLY C. DWYER, CLERK

BEA, Circuit Judge, dissenting: U.S. COURT OF APPEALS

I agree with the majority’s analysis of the merits. I disagree with the

majority’s assessment of Baltazar-Neri’s waiver of appellate rights. The majority

concludes that Balatazar-Neri did not unambiguously waive his right to appeal.

However, the majority’s interpretation renders the clear language of the waiver

provision meaningless in violation of our canons of contact construction.

Baltazar-Neri’s sentence fell into the range provided for in the plea

agreement. Thus, the sentence accorded with the terms of the plea agreement. The

district court’s incorrect decision with respect to whether Baltazar-Neri was

convicted of a crime of violence does not mean that the sentence fails to accord

with the plea agreement. If Baltazar-Neri can appeal based on the district court’s

analytical error, his waiver of “any right to appeal the imposition of sentence upon

[him]” and his agreement that “this waiver shall result in the dismissal of any

appeal . . . the defendant might file challenging [his] conviction or sentence in this

case” is rendered null: Baltazar-Neri could appeal based on any trial court error,

meaning no appeals are waived. The plea agreement’s waiver provision should not

be interpreted as meaningless. See United States v. Bolinger, 940 F.2d 478, 480

(9th Cir. 1991); see also Antonin Scalia & Bryan A. Garner, Reading Law: The

1 Interpretation of Legal Texts 174 (2012) (no provision should be given an

interpretation which causes it to have no consequence). Therefore, I disagree with

the majority: Baltazar-Neri waived his right to appeal.

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