Criminal Appeal

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.

Pre-Plea Motion for Substitution of Appointed Counsel is Waived By Subsequent Plea of No Contest. People v. Lovings, no. A097686 (Cal.Ct.App. (1st Dist., Div. 4) May 25, 2004).

Plea Agreement Appeal Waiver Barred Challenge to Supervised Release Condition

In a 2-1 opinion authored by Judge Richard C. Tallman, and joined by Judge Andrew J. Kleinfeld, the Ninth Circuit held today that a plea agreement appeal waiver barred a challenge to the terms of supervised release. The majority emphasized that the written plea agreement provided that the defendant "will knowingly and voluntarily waive his right, contained in 18 U.S.C. § 3742, to appeal the sentence imposed" and that the defendant waive his right "to appeal any aspect of the sentence." United States v. Joyce, no. 02-30423

In dissent, Judge Ronald M. Gould contended that the term "sentence" in the plea agreement was ambiguous and must be construed favorably to the defendant-appellant to encompass only the term of imprisonment.