United States v. Sergio Rafael Gonzalez

dissenting: *

Like every other circuit to consider the issue, we have held that plea agreements waiving defendants’ right to appeal are valid and enforceable. See, e.g., United States v. Navarro-Botello, 912 F.2d 318, 321-22 (9th Cir.1990), cert. denied, — U.S. -, 112 S.Ct. 1488 , 117 L.Ed.2d 629 (1992); United States v. Bolinger, 940 F.2d 478, 480 (9th Cir.1991). 1 These cases present a question of exceptional importance: Is the government entitled to the benefit of its bargain by obtaining the dismissal of an appeal brought in contravention of such a plea agreement, without incurring the cost and delay of briefing the case on the merits? By refusing to dismiss the appeals in these two cases, my colleagues answer this question in the negative. Because I believe this is inconsistent with Navarro-Botello and Bolinger , because it imposes an unwarranted burden on this court and because it will make such plea bargains less attractive to the government, to the ultimate detriment of defendants willing to abide by their terms, I dissent.

I

United States v. Arana-Galicia, No. 91-50846.

In February 1991, Jose Manuel Arana-Galicia was indicted for possessing marijuana with intent to…

ORDER

On June 1, 1992, appellee moved to dismiss this appeal on the basis that appellant *1038 had waived his right to appeal under the provisions of a plea agreement. On June 26, 1992, a panel of this court ordered appellant to submit a statement of the issues he intended to raise on appeal and to show cause why his appeal should not be dismissed. See United States v. Navarro-Botello, 912 F.2d 318 (9th Cir.1990).

In his response, appellant contends, among other issues, that the government breached the plea agreement by opposing a two-level reduction in sentencing for acceptance of responsibility.

If appellant’s contention is true, appellant may be entitled to specific performance or some other relief. See United States v. Goroza, 941 F.2d 905 (1991). We do not decide the merits of appellant’s contention that the government breached the plea agreement. 1 However, appellant’s contention calls into question the validity of the waiver. This issue should be resolved by a merits panel, along with any other issues that the merits panel determines are properly before it. Therefore, appellee’s motion to dismiss is denied. Cf. United States v. Hooten, 693 F.2d 857 (9th…

981 F.2d 1037 UNITED STATES of America, Plaintiff-Appellee, v. Sergio Rafael GONZALEZ, Defendant-Appellant. No. 92-50268. United States Court of Appeals, Ninth Circuit. Dec. 4, 1992. Janice D. Hogan, San Diego, CA, for defendant-appellant Sergio Rafael Gonzalez. John P. Pierce, Asst. U.S. Atty., San Diego, CA, for plaintiff-appellee U.S. Before: TANG, BEEZER and KOZINSKI, Circuit Judges. ORDER 1 On June 1, 1992, appellee moved to dismiss this appeal on the basis that appellant had waived his right to appeal under the provisions of a plea agreement. On June 26, 1992, a panel of this court ordered appellant to submit a statement of the issues he intended to raise on appeal and to show cause why his appeal should not be dismissed. See United States v. Navarro-Botello, 912 F.2d 318 (9th Cir.1990). 2 In his response, appellant contends, among other issues, that the government breached the plea agreement by opposing a two-level reduction in sentencing for acceptance of responsibility. 3 If appellant's contention is true, appellant may be entitled to specific performance or some other relief. See United States v. Goroza, 941 F.2d 905 (1991). We do not decide the merits of appellant's…