- Court: 9th Circuit Court of Appeals Archives
- Area(s) of Law: Criminal Procedure
- Date Filed: 11-30-2012
- Case #: 11-10663
- Judge(s)/Court Below: Circuit Judge Gould for the Court; Circuit Judge M. Smith and District Judge Duffy.
- Full Text Opinion
Eduardo Arias-Espinosa was sentenced to fifty-one months as part of a plea deal for illegal re-entry into the United States, a violation of 8 U.S.C. § 1326. In the plea deal, Arias-Espinosa explicitly waived his right to appeal, and affirmed that he understood he was waiving his right. At the end of the sentencing hearing, he was advised that he "may have a right to appeal this sentence." Based on that statement, Arias-Espinosa appealed the sentence. The Court found that because Arias-Espinosa explicitly waived his right to appeal, he does not have the right to appeal a sentence within the Sentencing Guidelines. The Court further found that the lower court's offer of appeal was "ambiguous," and did not render his written waiver of appeal unenforceable. The lower court's use of the word "may" gave possibility, not certainty. Since Arias-Espinosa agreed to a waiver of his right, the statement could not have created a "reasonable expectation" of appeal. DISMISSED.