FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-50113
Plaintiff-Appellee, D.C. No.
v. 5:07-cr-00166-
EVAN HARRIS, VAP-1
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, District Judge, Presiding
Argued and Submitted
November 4, 2010—Pasadena, California
Filed January 4, 2011
Before: J. Clifford Wallace and Susan P. Graber,
Circuit Judges, and Richard Mills, Senior District Judge.*
Opinion by Judge Wallace
*The Honorable Richard Mills, Senior United States District Judge for
the Central District of Illinois, sitting by designation.
313
UNITED STATES v. HARRIS 315
COUNSEL
Carlton Gunn, Deputy Federal Public Defender, Los Angeles,
California for defendant-appellant Evan Harris.
Jean-Claude Andre (argued), Assistant U.S. Attorney; Chris-
tine C. Ewell, Assistant U.S. Attorney, Los Angeles, Califor-
nia, for plaintiff-appellant United States of America.
OPINION
WALLACE, Senior Circuit Judge:
Harris appeals from his sentence for violating 18 U.S.C.
§ 922(g)(1) (2006). Because Harris waived the right to bring
316 UNITED STATES v. HARRIS
the instant appeal, we refuse to exercise jurisdiction over Har-
ris’s claims, and we dismiss his appeal.
I.
On March 10, 2008, Harris pleaded guilty, pursuant to a
written plea agreement, to being a felon in possession of a
firearm and ammunition in violation of 18 U.S.C. § 922(g)(1).
At sentencing, the government requested that Harris’s sen-
tence be enhanced pursuant to U.S.S.G. § 2K2.1(a) based on
Harris’s previous first-degree burglary conviction in Califor-
nia state court. According to the government, Harris’s prior
burglary conviction qualified for the enhancement as a “crime
of violence” under section 2K2.1(a). The district court agreed
and adjusted upward Harris’s sentence six levels based on the
enhancement. See § 2K2.1(a)(4). The district court then sen-
tenced Harris to thirty-six months’ imprisonment. In his
appeal, Harris contends that the district court erred when it
concluded that California first-degree burglary is a “crime of
violence” under section 2K2.1(a).
Before addressing the merits of Harris’s claims, we must
consider the government’s argument that this appeal should
be dismissed based on the appeal waiver contained in Harris’s
plea agreement. Generally, appellate courts “ ‘retain[ ] subject
matter jurisdiction over [an] appeal by a defendant who has
signed an appellate waiver.’ ” United States v. Jacobo Cas-
tillo, 496 F.3d 947, 957 (9th Cir. 2007) (en banc), quoting
United States v. Gwinnett, 483 F.3d 200, 201 (3d Cir. 2007).
Absent some miscarriage of justice, however, “ ‘we will not
exercise that jurisdiction to review the merits of [an] appeal
if we conclude that [the defendant] knowingly and voluntarily
waived’ ” the right to bring the appeal. Id. (emphasis added),
quoting Gwinnett, 483 F.3d at 201. Thus, we first turn our
attention to whether Harris knowingly and voluntarily waived
the right to appeal the claims that are the subject of the instant
appeal.
UNITED STATES v. HARRIS 317
II.
[1] “ ‘[A] defendant’s waiver of his appellate rights is
enforceable if (1) the language of the waiver encompasses his
right to appeal on the grounds raised, and (2) the waiver is
knowingly and voluntarily made.’ ” United States v. Charles,
581 F.3d 927, 931 (9th Cir. 2009) (footnote omitted), quoting
United States v. Jeronimo, 398 F.3d 1149, 1154 (9th Cir.
2005). Where an appeal raises issues encompassed by a valid,
enforceable appellate waiver, the appeal generally must be
dismissed. Castillo, 496 F.3d at 957; see also United States v.
Vences, 169 F.3d 611, 613 (9th Cir. 1999).
[2] When considering a criminal defendant’s appeal
waiver, “ ‘[o]ur analysis begins with the fundamental rule that
plea agreements are contractual in nature and are measured by
contract law standards.’ ” Jeronimo, 398 F.3d at 1153, quot-
ing United States v. Clark, 218 F.3d 1092, 1095 (9th Cir.
2000); see also United States v. Watson, 582 F.3d 974, 986
(9th Cir. 2009) (“Plea agreements are interpreted using con-
tract principles with any ambiguity construed in the defen-
dant’s favor”), cert. denied, 130 S. Ct. 3461 (2010). Thus,
“[i]f the terms of the plea agreement” and an appeal waiver
are “clear and unambiguous” on their face, we “will not look
to extrinsic evidence to determine their meaning.” Clark, 218
F.3d at 1095. “We review de novo whether a defendant has
waived his right to appeal by entering into a plea agreement
and the validity of such a waiver.” Jeronimo, 398 F.3d at
1153.
III.
In his plea agreement, Harris stipulated that section
2K2.1(a)(4)(A)’s “crime of violence” enhancement was appli-
cable under the Guidelines. He further stipulated to a total
offense level of seventeen, which included the enhancement
at issue. He then expressly agreed to the following appeal
waiver:
318 UNITED STATES v. HARRIS
Defendant gives up the right to appeal any sentence
. . . and the manner in which the sentence is deter-
mined, provided that (a) the sentence is within the
statutory maximum . . . and is constitutional, (b) the
Court in determining the applicable guideline range
does not depart upward in offense level or criminal
history category and determines that the total offense
level is [seventeen] or below, and (c) the Court
imposes a sentence within or below the range corre-
sponding to the determined total offense level and
criminal history category.
In other words, Harris waived his right to challenge a sen-
tence within a guideline range, even if his sentence included
the “crime of violence” enhancement.
[3] The record fully supports the validity of Harris’s
waiver. Harris does not contend that his waiver was unknow-
ing or involuntary. Furthermore, “[i]n addition to the written
terms of the plea agreement itself, the district court ‘reviewed
the charges and each of the terms of the plea agreement and
asked [Harris] questions to ensure that he understood the con-
tents of his plea agreement.’ ” Watson, 582 F.3d at 986, quot-
ing United States v. Baramdyka, 95 F.3d 840, 844 (9th Cir.
1996). The district court explained to Harris that “by pleading
guilty, you’re giving up most of your rights to appeal your
conviction to a higher court.” The district court then asked
Harris whether he understood that he was waiving his right of
appeal as long as the court calculated his total offense level
as seventeen or less. Harris stated that he understood and indi-
cated that he had no questions about the waiver. At his sen-
tencing, when the district court further reiterated to Harris that
he had expressly waived his appellate rights, Harris raised no
objection or argument to the contrary. These procedures are
“ ‘sufficient to find a knowing and voluntary waiver.’ ” Id. at
987, quoting Baramdyka, 95 F.3d at 844.
Notwithstanding the record of his waiver, Harris contends
that the government later modified the plea agreement to per-
UNITED STATES v. HARRIS 319
mit appeal of the district court’s total offense-level determina-
tion. While Harris stipulated in the plea agreement that his
prior first-degree burglary was a “crime of violence” under
section 2K2.1(a)(4)(A), he points to an email communication
wherein the government allowed him to withdraw that stipula-
tion. The government apparently allowed Harris to retract this
stipulation based on our now-withdrawn decision in United
States v. Aguila-Montes de Oca, 553 F.3d 1229, 1233 (9th
Cir. 2009), rehearing en banc granted, 594 F.3d 1080 (2010),
wherein we held that California first-degree burglary is not a
“crime of violence” under section 2L1.2(b) of the Guidelines.
In light of Aguila-Montes de Oca, the government agreed that
Harris could argue for a lower total offense level at sentenc-
ing, but indicated that it would still request the enhancement
because section 2K2.1(a) defines “crime of violence” differ-
ently than section 2L1.2(b). See United States v. Beltran-
Munguia, 489 F.3d 1042, 1050 (9th Cir. 2007) (explaining
that the definition of “crime of violence” is narrower in sec-
tion 2L1.2(b) than in other provisions). The relevant portion
of the email states,
RE: the issue of HARRIS’ base offense level. We
agree that you should be allowed to argue that the
base offense level should be changed in his favor
because there is new law on the topic since the plea
agreement. I’ll still likely maintain that the offense
level should be 20 and leave it to the Court to decide.
According to Harris, the government’s permission to chal-
lenge the enhancement extended not only to sentencing, but
also to a potential appeal.
[4] Harris’s argument, however, is foreclosed by the plain
and unmodified language contained in his plea agreement.
Subject to a few limited exceptions that are not applicable
here, the plea agreement provides that Harris “g[a]ve[ ] up the
right to appeal any sentence . . . and the manner in which the
sentence is determined . . . .” (Emphasis added.) This waiver
320 UNITED STATES v. HARRIS
clearly encompasses his challenge to the district court’s deci-
sion to apply the “crime of violence” enhancement at issue.
Nothing in the record indicates that the government later
modified the waiver provision when it allowed Harris to seek
a reduced offense level at sentencing. Instead, because Harris
had previously stipulated that the “crime of violence”
enhancement was appropriate, the government simply
allowed Harris to retract his prior stipulation to the enhance-
ment and to a total offense level of seventeen. The appeal
waiver remained intact, unequivocally stating that Harris gave
up his right to appeal his sentence if his offense level was sev-
enteen or below, which it was. Nothing in the record suggests
that the parties deviated from the clear text of the waiver pro-
vision. See Clark, 218 F.3d at 1095 (9th Cir. 2000) (we need
not look to extrinsic evidence to determine meaning of plea
agreement that is clear and unambiguous on its face).
Harris’s argument relies on the structure of the plea agree-
ment. According to Harris, the parties might have structured
the appeal waiver differently if he had not originally stipu-
lated to a base-offense level of seventeen. He contends that
this is so because “the offense level used in the appeal waiver
correspond[s] with the offense level set forth in the guidelines
stipulation.” Based on this relationship, Harris asserts that a
modification of base-offense level necessarily modifies the
appeal waiver. As we explained earlier, however, the appeal
waiver provision is clear and unambiguous, and there is noth-
ing in it suggesting that waiver was premised on the structure
of the plea agreement. If the parties intended for this structure
to be controlling, they would have manifested that intent in
the original plea agreement or through a written amendment
to that agreement. Further, the mere fact that Harris preserved
an issue for argument before the district court does not pre-
vent him from waiving that argument on appeal. It is not
extraordinary for a defendant to enter into a plea agreement
that permits him to make certain arguments at sentencing
while simultaneously waiving the right to raise the same argu-
ments on appeal. See, e.g., Watson, 582 F.3d at 980-81 (crimi-
UNITED STATES v. HARRIS 321
nal defendant waived right to appeal terms of his supervised
release even though defendant was permitted to challenge
those terms at his sentencing).
IV.
[5] We conclude that Harris waived his right to bring the
instant appeal. We therefore do not reach the merits of his
challenge to the district court’s decision to enhance his sen-
tence pursuant to U.S.S.G. § 2K2.1(a)(4).
APPEAL DISMISSED.