United States v. Fulvio Desantiago-Martinez

980 F.2d 582 UNITED STATES of America, Plaintiff-Appellee, v. Fulvio DeSANTIAGO-MARTINEZ, Defendant-Appellant. No. 92-50373. United States Court of Appeals, Ninth Circuit. Submitted Oct. 9, 1992 * . Decided Nov. 25, 1992. Kevin C. McLean, San Diego, Cal., for defendant-appellant. Judith S. Feigin, Asst. U.S. Atty., San Diego, Cal., for plaintiff-appellee. Appeal from the United States District Court for the Southern District of California. Before: FERGUSON, O'SCANNLAIN and RYMER, Circuit Judges. 1 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 to dismiss the appeal on the ground that the plea agreement contains an express waiver of the right to appeal the sentence. We dismiss. 2 "[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 DeSantiago's express…

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- *583 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…

dissenting:

The majority allows the district court to shirk its duties under Rule 11 and Rule 32(a)(2) when a defendant’s waiver of the right to appeal a sentence is contained in a plea agreement. While we have held that a defendant may waive his or her right to appeal in a negotiated plea agreement, 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), such a waiver is valid only if it is made voluntarily and knowingly. Id. at 320-21. The majority reduces the analysis of whether or not a waiver of the right to appeal is knowing and voluntary to a cursory look at the plea agreement itself. Such an analysis is particularly inadequate when, as here, the waiver provision is confusingly worded and the defendant is not a native English speaker. Furthermore, the majority overlooks the district court’s transgression of the clear language of Rule 32(a)(2), which says that a judge “shall advise the defendant of any right to appeal the sentence.”

I.

The trial judge is required to ascertain whether or not the defendant has knowingly and voluntarily entered into a plea agreement because such an agreement…