Medina-Carrasco

dissenting:

Defendant Jose Medina-Carrasco entered into a plea agreement with the government under which he agreed to waive his appellate rights “provided [he] receives a sentence in accordance with th[e] ... plea agreement.” This court previously has considered this same (or functionally equivalent) plea agreement language, from the same United States Attorney’s Office, in eight unpublished opinions. 1 In at least five of those cases, the court held that this caveat is ambiguous and thus renders the waiver unenforceable absent sufficient clarification from the district court or mag-ístrate judge. 2 Because I agree that this ambiguous waiver is unenforceable, and because I also conclude that the district court plainly erred in applying a “crime of violence” enhancement in calculating Medina-Carrasco’s sentencing guideline range, I respectfully dissent.

I. Appeal Waivers

I begin by acknowledging that this court and every other federal court of appeals to have considered the issue have held that appeal waivers are valid: If a defendant may waive his constitutional rights as part of a plea agreement, they reason, it follows that a defendant may waive statutory rights to appeal and…

Opinion by

Dissent by Judge FRIEDMAN.

ORDER

The opinion and dissent filed December 2, 2015, and published at 806 F.3d 1205 , is amended by the opinion and dissent filed concurrently with this order, as follows:

At opinion page -, 806 F.3d at 1212 , replace footnote 4 of the dissent with the following:

Judges Graber and Watford have voted to deny Appellant’s petition for rehearing en banc, and Judge Friedman has declined to make a recommendation.

The full court has been advised of the petition for rehearing en banc, and no judge of the court has requested a vote on it.

Appellant’s petition for rehearing en banc is DENIED. No further petitions for rehearing or petitions for rehearing en banc shall be entertained.

OPINION

Defendant Jose Medina-Carrasco pleaded guilty to illegal reentry after deportation. The district court sentenced him to 55 months’ imprisonment, to be followed by 3 years’ supervised release. On appeal, Defendant claims that the district court erred proeedurally by failing to state on the record the applicable sentencing guidelines range and erred substantively in calculating the applicable sentencing guidelines range. But Defendant’s plea agreement…