# United States v. Jacobo Castillo

> Court of Appeals for the Ninth Circuit · July 25, 2007 · 496 F.3d 947

URL: https://www.frixlaw.com/law-library/cases/9633380

## Case

- **Full name:** UNITED STATES of America, Plaintiff-Appellee, v. Domingo JACOBO CASTILLO, Defendant-Appellant
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** July 25, 2007
- **Citations:** 496 F.3d 947; 2007 U.S. App. LEXIS 17625; 2007 WL 2120232
- **Precedential status:** Published
- **Opinion:** Dissent by Callahan
- **Judges:** Schroeder, Pregerson, Reinhardt, Rymer, Thomas, Graber, Wardlaw, Fletcher, Fisher, Gould, Paez, Berzon, Bybee, Callahan, Smith
- **Cited by:** 228 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9633380

## How later opinions describe it (automated extraction)

- holding that a valid appeal waiver contained in a plea agreement does not divest this Court of jurisdiction to hear the defendant’s appeal, and so is subject to waiver
- holding that the enforceability of an appeal waiver and the preclusive effect of a plea agreement are not jurisdictional questions
- holding that federal appellate courts maintain jurisdiction even where a defendant unconditionally waives the right to appeal
- holding that a plea agreement waiver of appeal does not deprive appellate court of statutory jurisdiction
- holding that a valid guilty plea does not deprive the appellate court of jurisdiction

## Opinion text

CALLAHAN, Circuit Judge,
dissenting:
I
The precise issue in this case is whether this court has jurisdiction over pre-plea constitutional claims following a conviction pursuant to an unconditional guilty plea. The answer is no. By entering an unconditional guilty plea whereby a defendant admits his factual guilt, he removes the issue of guilt from his case, rendering moot any pre-plea challenges that do not implicate the validity of the admission itself. We therefore lack Article III jurisdiction over pre-plea constitutional claims because of the absence of a case or controversy. See Iron Arrow Honor Soc’y v. Heckler, 464 U.S. 67, 70 , 104 S.Ct. 373 , 78 L.Ed.2d 58 (1983); Liner v. Jafco, Inc., 375 U.S. 301 , 306 n. 3, 84 S.Ct. 391 , 11 L.Ed.2d 347 (1964) (“Our lack of jurisdiction to review moot cases derives from the requirement of Article III of the Constitu *958 tion under which the exercise of judicial power depends upon the existence of a case or controversy.”); In re Burrell, 415 F.3d 994 , 998 (9th Cir.2005) (“If the controversy is moot, both the trial and appellate courts lack subject matter jurisdiction, and the concomitant ‘power to declare the law’ by deciding the claims on the merits.” (citations omitted)). Accordingly, I respectfully dissent.
The three-judge panel majority was correct by recognizing that this case is governed by Tollett v. Henderson, 411 U.S. 258 , 93 S.Ct. 1602 , 36 L.Ed.2d 235 (1973), and Menna v. New York, 423 U.S. 61 , 96 S.Ct. 241 , 46 L.Ed.2d 195 (1975). In Tollett , the defendant pleaded guilty in state court to a grand jury indictment for first degree murder and was sentenced to a 99-year prison term. 411 U.S. at 259 , 93 S.Ct. 1602 . He sought federal habeas relief on the grounds that African Americans “were systematically excluded from ... grand jury” service. Id. at 260 , 93 S.Ct. 1602 . The Sixth Circuit focused on “whether respondent’s failure to object to the indictment within the time provided by [state] law constituted a waiver of his Fourteenth Amendment right to be indicted by a constitutionally selected grand jury,” and granted relief because the defendant demonstrated that he did not waive his right to a constitutional grand jury. Id. at 259-60 , 93 S.Ct. 1602 . The Supreme Court granted the warden’s petition for a writ of certiorari, framing the issue as “whether a state prisoner, pleading guilty with the advice of counsel, may later obtain release through federal habeas corpus by providing only that the indictment to which he pleaded was returned by an unconstitutionally selected grand jury.” Id. at 260 , 93 S.Ct. 1602 .
The Supreme Court answered that question in the negative, holding “that respondent’s guilty plea here ... forecloses independent inquiry into the claim of discrimination in the selection of the grand jury.” Id. at 266 , 93 S.Ct. 1602 . The Court reasoned that:
[A] guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea[.]
Id. at 267 , 93 S.Ct. 1602 (emphasis added).
The Court also rejected the lower court’s application of the “waiver” doctrine:
If the issue were to be cast solely in terms of “waiver,” the Court of Appeals was undoubtedly correct .... But just as the guilty pleas in the Brady trilogy were found to foreclose direct inquiry into the merits of claimed antecedent constitutional violations there, we conclude that respondent’s guilty plea here alike forecloses independent inquiry into the claim of discrimination in the selection of the grand jury.
Id. at 266 , 93 S.Ct. 1602 . Tollett makes clear that a guilty plea “forecloses independent inquiry” into “claimed antecedent constitutional violations,” not by virtue of a waiver, but because an unconditional guilty plea breaks the chain of events in a criminal proceeding. The unconditional guilty plea moots any claims of pre-plea constitutional violations that do not affect the voluntary and intelligent nature of the guilty plea because the admission of guilt is undisturbed by such alleged infirmaries.
Menna further explained that the guilty plea is not a “waiver,” but removes guilt issues from the case. 423 U.S. at 62 n. 2, 96 S.Ct. 241 . Menna involved a defendant *959 who pleaded guilty to charges after the state court denied his motion to dismiss for violation of the Double Jeopardy Clause. Id. at 61 , 96 S.Ct. 241 . The state appellate court affirmed the conviction, declining to address the defendant’s double jeopardy argument. The Supreme Court reversed, explaining that the issue was not one of “waiver” of a constitutional right:
The point of [Tollett ] is that a counseled plea of guilty is an admission of factual guilt so reliable that, where voluntary and intelligent, it quite validly removes the issue of factual guilt from the case. In most cases, factual guilt is a sufficient basis for the State’s imposition of punishment. A guilty plea, therefore, simply renders irrelevant those constitutional violations not logically inconsistent with the valid establishment of factual guilt and which do not stand in the way of conviction if factual guilt is validly established.
Id. at 62 n. 2, 96 S.Ct. 241 (emphasis added). The Court ultimately held that the defendant’s Double Jeopardy claim was not barred by his guilty plea because “the claim is that the State may not convict petitioner no matter how validly his factual guilt is established.” Id. Menna demonstrates that the guilty plea — by removing the issue of factual guilt from the case and rendering irrelevant pre-plea constitutional violations that do not implicate the validity of the guilty plea — necessarily destroys the case or controversy nature of the guilt phase of a criminal proceeding.
Subsequent to Tollett and Menna , the Supreme Court clarified that review of a guilty plea is confined to the voluntary and intelligent nature of the plea itself. In Mabry v. Johnson, 467 U.S. 504 , 104 S.Ct. 2543 , 81 L.Ed.2d 437 (1984), the Supreme Court considered whether a defendant’s acceptance of a plea offer created a right to have the offer enforced, after the prosecutor withdrew the offer and the defendant subsequently entered an unconditional guilty plea pursuant to a new plea bargain. The Court reasoned that “a voluntary and intelligent plea of guilty made by an accused person, who has been advised by competent counsel, may not be collaterally attacked.... It is only when the consensual character of the plea is called into question that the validity of a guilty plea may be impaired.” Id. at 508-09 , 104 S.Ct. 2543 . The Court held that because the defendant’s plea was not induced by the prosecutor’s withdrawn offer and the defendant did not allege ineffective assistance of counsel, the guilty plea “fully satisfied the test for voluntariness and intelligence.” Id. at 510 , 104 S.Ct. 2543 . Therefore, the defendant could not then challenge his conviction by alleging that the withdrawn offer violated due process. Id. at 510-11 , 104 S.Ct. 2543 .
II
On appeal Jacobo Castillo challenges the district court’s denial of his motion to suppress evidence seized in violation of the Fourth Amendment. The Supreme Court has expressly declared that Fourth Amendment violations do not affect the validity of the guilty plea or conviction. See Haring v. Prosise, 462 U.S. 306, 321 , 103 S.Ct. 2368 , 76 L.Ed.2d 595 (1983) (“[W]hen a defendant is convicted pursuant to his guilty plea rather than a trial, the validity of that conviction cannot be affected by an alleged Fourth Amendment violation because the conviction does not rest in any way on the evidence that may have been improperly seized.”). Because the seizure of evidence does not implicate Jacobo Castillo’s guilty plea, under Tollett and Menna Jacobo Castillo’s guilty plea rendered this appellate claim moot.
Jacobo Castillo also alleges that a pre-indictment delay violated his due process rights. However, this court has held that the accused’s right to a speedy trial “is to *960 guarantee that [his] right to a fair trial is not substantially prejudiced by either pr[e]- or post-accusation delays.... If guilt can be validly established such violations are not logically inconsistent therewith.” United States v. O’Donnell, 539 F.2d 1233, 1237 (9th Cir.1976) (superseded by rule on other grounds). Because pre-indictment delay is one of the “constitutional violations not logically inconsistent with the valid establishment of factual guilt” described by Menna , Jacobo Castillo also “rendered irrelevant” this claim by entering an unconditional guilty plea. Because both issues advanced on appeal fall within Tollett’s foreclosure of independent inquiry, Jacobo Castillo’s appeal presents no case or controversy. Therefore, this court lacks jurisdiction to hear Jacobo Castillo’s appeal. 1
Ill
In addition to correctly applying Supreme Court precedent, the three-judge majority opinion was consistent with Ninth Circuit authority because we have repeatedly held that an unconditional guilty plea deprives this court of jurisdiction to hear claims of pre-plea error. See United States v. Reyes-Platero, 224 F.3d 1112 (dismissing appeal of unconditional guilty plea conviction for lack of jurisdiction where defendant alleged pre-plea treaty defect); United States v. Floyd, 108 F.3d 202 (9th Cir.1997) (dismissing appeal of pre-plea denial of suppression motion for lack of jurisdiction); United States v. Carrasco, 786 F.2d 1452 (9th Cir.1986) (holding that the court lacks jurisdiction to consider a pre-plea motion to suppress evidence when there was no valid conditional plea). While these cases describe the guilty plea as a “waiver,” all but Carrasco also cite to Tollett in support of their holdings that this court lacks jurisdiction over pre-plea constitutional claims. Cf. United States v. Lopez-Armenta, 400 F.3d 1173 (9th Cir.2005) (relying on Tollett and dismissing pre-plea claims without describing dismissal as jurisdictional, describing unconditional guilty plea as a waiver).
While our precedent reaches the correct result, we have used the term “waiver” loosely, causing us to lose sight of the underpinnings in Tollett 2 A guilty plea clearly waives a defendant’s right to a trial, right to cross-examine witnesses, and right to remain silent. But the removal of issues pertaining to the lawfulness of pre-plea governmental conduct from a criminal proceeding does not stem from the waiver of these rights. The removal of pre-plea constitutional issues from a criminal proceeding stems from a defendant’s admission of past conduct. It is the admission of guilt — not his waiver of trial rights — that moots any pre-plea challenges to his conviction because the validity of the conviction rests on the voluntary admission of guilt, not on any pre-plea governmental conduct. See Prosise, 462 U.S. at 319, 321 , 103 S.Ct. 2368 (explaining that a guilty plea is both an admission of past conduct and a waiver of constitutional trial rights, and that Tollett recognized that a guilty *961 plea is not undermined by the validity of a Fourth Amendment violation because the plea does not rest on seized evidence); United States v. Broce, 488 U.S. 568 , 573, 109 S.Ct. 757 , 102 L.Ed.2d 927 (1989) (explaining that a valid guilty- plea does not involve the conscious waiver of potential defenses).
The en banc majority distinguishes Tollett and Menna as “addressing] the preclusive effect to be given the plea agreement,” and “not [addressing] the jurisdiction of the court.” There is evidence of a plea agreement in Tollett because the Court noted that an “agreed-upon sentence was imposed.” 411 U.S. at 261 , 93 S.Ct. 1602 . But the holding in Tollett had nothing to do with the plea agreement; rather it focused exclusively on the plea — the admission of guilt. The irrelevance of a plea agreement is emphasized by Menna , where there was no indication that a plea agreement even existed. Instead of dismissing Tollett as not controlling, we should clarify that a valid unconditional guilty plea deprives this court of jurisdiction to consider antecedent errors “not logically inconsistent with the establishment of factual guilt and which do not stand in the way of conviction if factual guilt is validly established.” Menna, 423 U.S. at 62 n. 2, 96 S.Ct. 241 .
The three-judge panel majority dismissed Jacobo Castillo’s appeal, relying on our circuit precedent that recognizes the jurisdictional implications of a guilty plea. The majority properly distinguished United States v. Garcia-Lopez, 309 F.3d 1121 (9th Cir.2002), because that case involved a contractual waiver of the right to appeal a sentence contained in a written plea agreement. Under Reyes-Platero , we recognized that the rule in Tollett applies only to pre-plea challenges and does not affect our jurisdiction over error “occurring after the entry of a guilty plea.” 224 F.3d at 1115— 16. Indeed, a plea agreement that contains a waiver of the right to appeal can encompass a broader set of issues than those implicated by an unconditional guilty plea. Compare United States v. Michlin, 34 F.3d 896, 898 (affirming conviction because plea agreement waived the right .to appeal double jeopardy claim) with Menna 423 U.S. at 63 , 96 S.Ct. 241 (overturning conviction because the defendant’s unconditional guilty plea did not foreclose his double jeopardy claim). But, absent the inclusion of a Rule 11(a)(2) conditional plea, a plea agreement by itself does not undermine the import of Tollett and Menna , even if it includes waiver language pertaining to pre-plea issues. This is because a defendant cannot waive a right that does not exist, and this is why the plea agreement in this case has no bearing on the issue we address today.
IV
I agree with the en banc majority that “only Congress can confer or divest the lower federal courts of subject matter jurisdiction.” However, I disagree that the three-judge panel majority thought that Rule 11 deprived us of jurisdiction over this case. The three-judge majority merely recognized that this case did not involve a conditional plea. United States v. Jacobo Castillo, 464 F.3d 988, 989 (9th Cir. 2006), reh’g en banc granted, 473 F.3d 1264 (9th Cir.2007). The en banc majority’s labored discussion of Rule 11 has no import over the scope of our jurisdiction following an unconditional guilty plea. Nor does it undermine Tollett or our precedent.
The en banc majority misses the mark by focusing on the plea agreement. The agreement is relevant only to the extent that it weighs on the threshold issues of whether Jacobo Castillo entered a knowing and voluntary plea, and whether he en *962 tered a conditional plea pursuant to Rule 11(a)(2). While a plea agreement may also be relevant to whether a defendant contractually waived his right to appeal post-plea issues, such as sentencing decisions, this concern is not present here because Jacobo Castillo does not advance any post-plea claims on appeal. See Garcia-Lopez, 309 F.3d at 1122-23 (explaining that the government can waive the contractual appeal waiver contained in a plea agreement allowing court to hear sentencing appeal).
The out-of-circuit cases cited by the en banc majority also are not on point. United States v. Hahn, 359 F.3d 1315 (10th Cir.2004), United States v. Story, 439 F.3d 226 (5th Cir.2006), United States v. Caruthers, 458 F.3d 459 (6th Cir.2006), and United States v. Gwinnett, 483 F.3d 200 (3d Cir.2007), are sentencing appeals that, like Garcia-Lopez , clearly implicate the appeal waiver provisions of their respective plea agreements. 3 These cases do not implicate Tollett or support the exercise of jurisdiction over Jacobo Castillo’s pre-plea claims. They are, however, consistent with our understanding that the rule in Tollett applies only to pre-plea challenges and does not affect our jurisdiction over error “occurring after the entry of a guilty plea.” See Reyes-Platero, 224 F.3d at 1116 .
V
Contrary to the approach taken by the en banc majority, I would address Jacobo Castillo’s threshold claims that his guilty plea (1) was not knowing and voluntary, and (2) was conditional, before disposing of this appeal. I would hold that Jacobo Castillo waived his challenge to the knowing and voluntary nature of his plea by failing to raise this argument in his opening or supplemental opening brief. See Bazuaye v. INS, 79 F.3d 118, 120 (9th Cir.1996) (citing Eberle v. City of Anaheim, 901 F.2d 814, 818 (9th Cir.1990) (deeming issue waived when raised for the first time in the reply brief)). Alternatively, I would deny his claim on the merits because the plea agreement does not misrepresent his appellate rights. Jacobo Castillo’s contention that he entered a conditional guilty plea is also belied by the record. Because Jacobo Castillo failed to preserve his claims through a Rule 11(a)(2) conditional plea, under Tollett, Menna, and our circuit precedent, this appeal must be dismissed for lack of jurisdiction. By pleading guilty to the indictment, Jacobo Castillo rendered irrelevant and thereby mooted the claims that he seeks to advance on appeal.
. I recognize that we have jurisdiction to determine whether Jacobo Castillo's guilty plea was entered knowingly and voluntarily, and that the remedy for an unknowing or involuntary plea would be withdrawal of the plea. See Machibroda v. United States, 368 U.S. 487, 492 , 82 S.Ct. 510 , 7 L.Ed.2d 473 (1962). I also recognize that we have jurisdiction to determine whether Jacobo Castillo entered a conditional guilty plea pursuant to Federal Rule of Criminal Procedure 11(a)(2) and over any claims preserved by that procedure. See United States v. Carrasco, 786 F.2d 1452, 1453-54 (9th Cir.1986).
. The Seventh Circuit has suffered from the same problem, incorrectly using the term "waiver” to describe the effect of a defendant's unconditional guilty plea on its appellate jurisdiction. See United States v. Rogers, 387 F.3d 925 (7th Cir.2004).
. The defendant in Caruthers was also able to challenge the denial of his suppression motion because he entered a conditional plea under Rule 11.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9633380. Public record. Not legal advice.