Is Waiver Waivable? - Split Decision From Ninth Circuit

U.S. v. Castillo (9th Cir. Sept. 22, 2006)

In a 2-1 opinion authored by Judge Beezer (and joined by Judge Tallman) the Ninth Circuit held that an appeal from the denial of a motion to suppress must be dismissed when the defendant has entered an unconditional guilty plea, even if the government has not raised the jurisdictional defect. In contrast, the government can waive a claim that an appeal should be dismissed because the taking of the appeal conflicts with a waiver of appellate rights that was a term of a plea agreement.

Judge Bybee dissented, finding the two situations indistinguishable and suggesting that only the en banc court could hold as the majority did.