concurring.

The casual reader of our opinion might wonder what in the world caused a careful and experienced district judge to advise a defendant who had waived his right to appeal that he might nevertheless have a right to appeal. The judge found himself trapped between two lines of authority. On the one hand, our caselaw provides that a defendant waiving his right to appeal may still be entitled to appeal under certain circumstances. * Since the defendant thus still has some appeal rights, he must be advised of those rights by the judge. See Fed.R.Crim.P. 32(c)(5).

On the other hand, we have held that where the judge advises the defendant, without qualification, that he has a right to appeal, he will be deemed to have such a right even though he gave it up in the plea bargain. See United States v. Buchanan, 59 F.3d 914, 917-18 (9th Cir.1995).

The district judge struggled to extricate himself from this glue trap by telling Sehuman that he had whatever rights to appeal we say he has. While this was a laudable effort, a better formulation might he to advise the defendant that he had waived most of his appeal rights, but that he nevertheless retained a right to appeal under certain very limited circumstances. The judge need not explain those circumstances to the defendant; he need only assure himself that the defendant and his lawyer have discussed them.

If the district judge incorrectly advises the defendant that he has an unqualified right to appeal, even though he waived it in his plea agreement, the Assistant United States Attorney should object and point out the waiver. If the district judge refuses to accept the waiver and so advise the defendant, see, e.g., United States v. Littlefield, 105 F.3d 527, 529 (9th Cir.1997) (Hall, J. concurring), the United States would then be entitled to withdraw from the plea agreement, because the terms would no longer be those to which it agreed. See United States v. Mukai, 26 F.3d 953, 956 (9th Cir.1994) (“[I]f the court later finds the *819 disposition in the plea agreement objectionable it ‘should not reduce the sentence unilaterally in such cases, but rather should withdraw its acceptance of the plea agreement and permit the parties to renegotiate .a more appropriate sentence or opt for trial.’ ”) (citing United States v. Sender, 883 F.2d 832, 835 (9th Cir.1989)).

See, e.g., United States v. Littlefield, 105 F.3d 527, 528 (9th Cir.), cert. denied, - U.S. -, 117 S.Ct. 2423 , 138 L.Ed.2d 186 (1997) (waiving right to appeal does not preclude an appeal if the sentence violates the law or is based on “an incorrect application of the sentencing guidelines” pursuant to 18 U.S.C. § 3742 ); United States v. Navarro-Botello, 912 F.2d 318, 321 (9th Cir.1990) (waiving right to appeal would not prevent an appeal where the sentence imposed is not in accordance with the negotiated agreement); United States v. Jacobson, 15 F.3d 19, 23 (2nd Cir.1994) (waiving right to appeal sentence did not bar appeal of sentence on due process ground that disparity of sentences among codefendants was based entirely on naturalized status); United States v. Marin, 961 F.2d 493, 496 (4th cir.1992) (waiving right to appeal does not permit being sentenced entirely at the whim of the district court and would not encompass a sentence in excess of maximum statutory penalty or one based on a constitutionally impermissible factor such as race); United States v. Rutan, 956 F.2d 827, 829-30 (8th Cir.1992) (noting that despite an appeal waiver, a defendant can still appeal a sentence not in accordance with the negotiated agreement, and can challenge an illegal sentence under 28 U.S.C. § 2255 ).