United States v. Juan Garcia-Lopez

We hold today that even if a defendant has waived his right to appeal in a plea agreement, we may nevertheless hear the appeal when the government has expressly waived its right to assert the defendant’s waiver. In other words, the government can waive the waiver.

I. Background

Pursuant to a plea agreement, Garcia Lopez plead guilty to one count of transportation of illegal aliens, in violation of 8 U.S.C. § 1324 (a)(l)(A)(ii). Section 11 of the plea agreement provided as follows:

After applying several sentencing enhancements and then a downward departure, the district court calculated Garcia-Lopez’s adjusted offense level to be 18. At Criminal History Category I, the resulting guideline sentencing range was 27 to 33 months. The district court sentenced Garcia-Lopez to 27 months. Notwithstanding the appeal waiver, Garcia-Lopez filed a notice of appeal of the sentence.

Prior to any briefing, the government moved to dismiss the appeal on the ground that Garcia-Lopez had waived his right to appeal. Appellate Commissioner Peter L. Shaw denied the motion without prejudice to the government’s right to renew the argument in its answering brief. When the government’s…