United States v. Luis Gonzales-Garcia
Opinion
Opinion
MEMORANDUM
Luis Fernando Gonzales-Garcia appeals from the district court’s judgment and challenges the 60-month sentence imposed following his guilty-plea conviction for reentry of a removed alien, in violation of 8 U.S.C. § 1326 . We have jurisdiction under 28 U.S.C. § 1291 , and we affirm.
Gonzales-Garcia contends that the government breached the plea agreement by failing to move for a three-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1. The government contends that the appeal is barred by a valid appeal waiver. We review de novo whether a defendant has waived his right to appeal. See United States v. Watson, 582 F.3d 974, 981 (9th Cir.2009). In the plea agreement, Gonzales-Garcia waived his right to appeal the judgment and sentence as long as the “sentence is consistent with this agreement.” Neither the plea agreement nor the magistrate judge at the change of plea hearing explained what was meant by this provision. This ambiguity is construed against the government, see United States v. Transfiguracion, 442 F.3d 1222, 1228 (9th Cir.2006), and we hold that Gonzales-Garcia did not knowingly and intelligently waive his right to appeal.