United States v. Domingo Jacobo Castillo

464 F.3d 988 UNITED STATES of America, Plaintiff-Appellee, v. Domingo Jacobo CASTILLO, Defendant-Appellant. No. 05-30401. United States Court of Appeals, Ninth Circuit. Submitted June 7, 2006. * Filed September 22, 2006. Dawn M. Reynolds, Dallas, OR, for the defendant-appellant. K. Jill Bolton, Assistant United States Attorney, Spokane, WA, for the plaintiff-appellee. Appeal from the United States District Court for the Eastern District of Washington; Fred L. Van Sickle, Chief Judge, Presiding. D.C. No. CR-04-02157-FVS. Before: BEEZER, TALLMAN, and BYBEE, Circuit Judges. BEEZER, Circuit Judge: 1 Domingo Jacobo Castillo ("Jacobo") pleaded guilty to one count of being an illegal alien in possession of a firearm in violation of 18 U.S.C. § 922 (g)(5). He now appeals the denial of his pre-plea motion to suppress and argues that the delay between the discovery of the firearm and his indictment constitutes a violation of his Fifth Amendment due process rights. We lack jurisdiction over this appeal because Jacobo entered an unconditional guilty plea. 2 We have previously held that "an unconditional guilty plea constitutes a waiver of the right to appeal all nonjurisdictional…

Domingo Jacobo Castillo (“Jacobo”) pleaded guilty to one count of being an illegal alien in possession of a firearm in violation of 18 U.S.C. § 922 (g)(5). He now appeals the denial of his pre-plea motion to suppress and argues that the delay between the discovery of the firearm and his indictment constitutes a violation of his Fifth Amendment due process rights. We lack jurisdiction over this appeal because Jacobo entered an unconditional guilty plea.

*989 We have previously held that “an unconditional guilty plea constitutes a waiver of the right to appeal all nonjurisdictional antecedent rulings and cures all antecedent constitutional defects.” United States v. Lopez-Armenta, 400 F.3d 1173, 1175 (9th Cir.2005); see also United States v. Reyes-Platero, 224 F.3d 1112, 1115 (9th Cir.2000) (“[W]e do not have jurisdiction over the merits of appeals based upon pre-waiver constitutional defects, and we must dismiss that portion of the appeal.”); United States v. Floyd, 108 F.3d 202, 204 (9th Cir.1997) (“Unless [appellant’s] plea conformed with [Rule ll(a)(2)’s] specific requirements, we have no jurisdiction to hear her appeal.”); United States v. Carrasco, 786 F.2d 1452, 1453-54 (9th…

dissenting:

I write separately because our precedents will not support — and, indeed, they contradict — the majority’s holding. In particular, the majority’s holding clearly conflicts with our decision in United States v. Garcia-Lopez, 309 F.3d 1121, 1122 (9th Cir.2002). I believe that we cannot dismiss this case for want of jurisdiction without seeking en banc approval.

I agree that Jacobo relinquished his pretrial constitutional appeals at sentencing. See Tollett v. Henderson, 411 U.S. 258 , 93 S.Ct. 1602 , 36 L.Ed.2d 235 (1973). The question is: What are the consequences? Not infrequently, a defendant who has waived his right to appeal in a plea agreement will file an appeal anyway. Ordinarily, in such cases, the government will advise us of the waiver, either by motion or in its brief, and we will dismiss the appeal, often in a memorandum disposition. But in this case, the government answered Ja-cobo’s contentions on the merits, never arguing that Jacobo’s appeal was barred or moving to dismiss his appeal. Nevertheless, the majority holds that Jacobo’s waiver is a jurisdictional bar, and that we must dismiss the appeal, even though the government never raised the point. In…