FILED
NOT FOR PUBLICATION SEP 19 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-10444
Plaintiff - Appellee, D.C. No. 4:11-cr-03230-DCB-
BGM-1
v.
ANTONIO BALTAZAR-NERI, AKA MEMORANDUM*
Antonio Neri Baltazar,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
David A. Ezra, District Judge, Presiding
Argued and Submitted August 13, 2013
San Francisco, California
Before: GRABER, BEA, and HURWITZ, Circuit Judges.
Antonio Baltazar-Neri appeals the sentence imposed following his guilty plea
to illegal re-entry after deportation in violation of 8 U.S.C. § 1326. We have
jurisdiction under 28 U.S.C. § 1291. We vacate and remand for resentencing.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1. The government conceded that Baltazar-Neri was not previously convicted
of a “burglary of a dwelling,” as that phrase is used in U.S.S.G. § 2L1.2, and therefore
should not have received a sixteen-level enhancement. The government contends,
however, that Baltazar-Neri’s plea agreement waived his right to appeal the enhanced
sentence.
2. We review de novo the validity of an appeal waiver. United States v.
Buchanan, 59 F.3d 914, 916 (9th Cir. 1995). In that review, we “determine what the
defendant reasonably understood to be the terms of the agreement when he pleaded
guilty.” United States v. De la Fuente, 8 F.3d 1333, 1337 (9th Cir. 1993) (footnote
omitted).
3. Although the plea agreement in this case contains language waiving the right
to appeal, it also states that “objections” to the sentence imposed by the district court
are waived only if “the sentence is consistent with this agreement.” The sixteen-level
enhancement is “consistent” with the plea agreement only if Baltazar-Neri was
previously convicted of burglary of a dwelling. The government argues that the plea
agreement allowed Baltazar-Neri to object to the improper characterization of his
criminal record before the district court, not on appeal. Although that reading of the
plea agreement is not implausible, when, as here, the government drafted the
agreement, any ambiguities are construed in favor of the defendant. United States v.
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Cope, 527 F.3d 944, 950 (9th Cir. 2008). Because the language preserving the right
to object to a sentence is not expressly limited to objections before the district court,
we conclude that Baltazar-Neri did not unambiguously waive his right to appeal.
VACATED and REMANDED.
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FILED
United States v. Baltazar-Neri, 12-10444 SEP 19 2013
MOLLY C. DWYER, CLERK
BEA, Circuit Judge, dissenting: U.S. COURT OF APPEALS
I agree with the majority’s analysis of the merits. I disagree with the
majority’s assessment of Baltazar-Neri’s waiver of appellate rights. The majority
concludes that Balatazar-Neri did not unambiguously waive his right to appeal.
However, the majority’s interpretation renders the clear language of the waiver
provision meaningless in violation of our canons of contact construction.
Baltazar-Neri’s sentence fell into the range provided for in the plea
agreement. Thus, the sentence accorded with the terms of the plea agreement. The
district court’s incorrect decision with respect to whether Baltazar-Neri was
convicted of a crime of violence does not mean that the sentence fails to accord
with the plea agreement. If Baltazar-Neri can appeal based on the district court’s
analytical error, his waiver of “any right to appeal the imposition of sentence upon
[him]” and his agreement that “this waiver shall result in the dismissal of any
appeal . . . the defendant might file challenging [his] conviction or sentence in this
case” is rendered null: Baltazar-Neri could appeal based on any trial court error,
meaning no appeals are waived. The plea agreement’s waiver provision should not
be interpreted as meaningless. See United States v. Bolinger, 940 F.2d 478, 480
(9th Cir. 1991); see also Antonin Scalia & Bryan A. Garner, Reading Law: The
1
Interpretation of Legal Texts 174 (2012) (no provision should be given an
interpretation which causes it to have no consequence). Therefore, I disagree with
the majority: Baltazar-Neri waived his right to appeal.
2