United States v. Jeronimo

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 03-30394
Plaintiff-Appellee, D.C. No.
v.  CR-02-60067-1-
PASCUAL DIONICIO JERONIMO, MRH
Defendant-Appellant.
 OPINION

Appeal from the United States District Court
for the District of Oregon
Michael R. Hogan, Chief District Judge, Presiding

Argued and Submitted
September 13, 2004—Portland, Oregon

Filed February 23, 2005

Before: J. Clifford Wallace, Ronald M. Gould, and
Marsha S. Berzon, Circuit Judges.

Opinion by Judge Gould;
Dissent by Judge Berzon

2087
2090 UNITED STATES v. JERONIMO

COUNSEL

Richard L. Fredericks, Eugene, Oregon, for the defendant-
appellant.

Karin J. Immergut, United States Attorney, District of Ore-
gon, and Frank R. Papagni, Jr., Assistant United States Attor-
ney, District of Oregon, for the plaintiff-appellee.

OPINION

GOULD, Circuit Judge:

We consider whether a plea agreement is enforceable and
effectively waives the right of appeal. We conclude that we
are without jurisdiction to assess the merits of this direct
appeal.

I

In July 2002, Pascual Dionicio Jeronimo (“Jeronimo”)
faced a potential maximum sentence of thirty years imprison-
ment for various drug trafficking offenses when he entered
into plea negotiations with the government. Through his for-
mer attorney, John Kolego (“Kolego”), Jeronimo reached a
plea agreement on November 1, 2002, whereby the govern-
ment agreed to dismiss some of his pending charges, recom-
mend downward departure and a sentence at the low end of
the applicable guideline range, refrain from seeking an
 UNITED STATES v. JERONIMO 2091
upward departure, and reduce his maximum potential sen-
tence to twenty years. In return, Jeronimo agreed to plead
guilty to two counts of drug trafficking, admit to specific drug
quantities, forfeit his interest in certain property, and to waive
his rights to appeal and to collaterally attack the length of his
sentence. Both Jeronimo and Kolego signed the plea agree-
ment. Immediately above Jeronimo’s signature in capital let-
ters was the following statement:

I HAVE READ OR HAD READ AND TRANS-
LATED TO ME IN SPANISH BY AN INTER-
PRETER, THIS AGREEMENT AND HAVE
CAREFULLY REVIEWED EVERY PART OF IT
WITH MY ATTORNEY.

I UNDERSTAND AND VOLUNTARILY
AGREE TO IT AND PROMISE TO ABIDE BY
EVERY TERM.

I VOLUNTARILY SIGN THIS AGREEMENT
WITH THE FULL UNDERSTANDING OF ALL
OF THE ABOVE.

At Jeronimo’s change of plea hearing, which also took
place on November 1, 2002, the district court dutifully con-
ducted a comprehensive plea colloquy with Jeronimo that
embraced all disclosures and inquiries required by Rule 11 of
the Federal Rules of Criminal Procedure.1 Among these dis-
1
On November 1, 2002, Federal Rule of Criminal Procedure 11 pro-
vided in pertinent part:
(c) Advice to Defendant. Before accepting a plea of guilty or nolo
contendere, the court must address the defendant personally in
open court and inform the defendant of, and determine that the
defendant understands, the following:
(1) the nature of the charge to which the plea is offered, the
mandatory minimum penalty provided by law, if any, and the
maximum possible penalty provided by law, including the
2092 UNITED STATES v. JERONIMO
closures was the district court’s explicit advice to Jeronimo
that “the maximum penalty [under his plea agreement was] 20

effect of any special parole or supervised release term, the
fact that the court is required to consider any applicable sen-
tencing guidelines but may depart from those guidelines
under some circumstances, and, when applicable, that the
court may also order the defendant to make restitution to any
victim of the offense; and
(2) if the defendant is not represented by an attorney, that the
defendant has the right to be represented by an attorney at
every stage of the proceeding and, if necessary, one will be
appointed to represent the defendant; and
(3) that the defendant has the right to plead not guilty or to
persist in that plea if it has already been made, the right to
be tried by a jury and at that trial the right to the assistance
of counsel, the right to confront and cross-examine adverse
witnesses, and the right against compelled self-incrimination;
and
(4) that if a plea of guilty or nolo contendere is accepted by
the court there will not be a further trial of any kind, so that
by pleading guilty or nolo contendere the defendant waives
the right to a trial; and
(5) if the court intends to question the defendant under oath,
on the record, and in the presence of counsel about the
offense to which the defendant has pleaded, that the defen-
dant’s answers may later be used against the defendant in a
prosecution for perjury or false statement; and
(6) the terms of any provision in a plea agreement waiving
the right to appeal or to collaterally attack the sentence.
(d) Insuring That the Plea is Voluntary. The court shall not accept
a plea of guilty or nolo contendere without first, by addressing
the defendant personally in open court, determining that the plea
is voluntary and not the result of force or threats or of promises
apart from a plea agreement. The court shall also inquire as to
whether the defendant’s willingness to plead guilty or nolo con-
tendere results from prior discussions between the attorney for
the government and the defendant or the defendant’s attorney.
Rule 11 was amended in December of 2002.
 UNITED STATES v. JERONIMO 2093
years in prison and a fine of up to $1 million.” Jeronimo in
response assured the district court that he had discussed the
federal Sentencing Guidelines with Kolego, and that he was
satisfied with Kolego’s help. When asked if his plea was
“freely and voluntarily made with a good understanding of the
nature of the charges against [him] and the matters in [the]
plea petition and plea bargain letter,” Jeronimo said “yes.”

Before the court’s acceptance of the plea, the prosecutor
interjected comments alerting Jeronimo that the government
was planning to bring his prior drug and felony assault con-
victions, as well as his status as an illegal alien and a prison
escapee, to the court’s attention during sentencing. When the
court asked Jeronimo if he understood that these facts would
“likely affect [his] sentence,” Jeronimo responded “yes.” The
court accepted his plea.

The United States Probation Office issued its Presentence
Report and Sentencing Recommendation on December 10,
2002. Because of his previous convictions for felony assault
and drug trafficking, Jeronimo was classified as a career
offender with an applicable Sentencing Guidelines range of
151-88 months of imprisonment.

On March 6, 2003, Jeronimo moved through Kolego to
withdraw his guilty plea on the grounds that “he [did] not
believe that he was adequately advised as to the potential sen-
tencing consequences prior to his change of plea and [did] not
feel his plea was intelligently and knowingly made.” On
March 17, 2003, Jeronimo filed a separate pro se “Motion to
Withdraw Plea of Guilty Due to Inadequate and Fraudulent
Representation By Legal Counsel” alleging that Kolego “on
several occasions distorted facts as well as misled for the pur-
pose of extracting a ‘Guilty’ plea.” He also alleged that
Kolego “repeatedly changed and lied about possible sentences
after [the] plea of ‘Guilty’ was entered.”

On May 27, 2003, Richard Fredericks (“Fredericks”) was
appointed as Jeronimo’s new attorney. On August 14, 2003,
2094 UNITED STATES v. JERONIMO
Fredericks filed a Memorandum in Support of Motion to
Withdraw Guilty Plea on Jeronimo’s behalf, asserting that
Jeronimo was “deprived . . . of the opportunity to make an
intelligent and voluntary decision” because he allegedly
pleaded in reliance on Kolego’s erroneous prediction that he
would receive a sentence of 87 months.

At a hearing on his plea withdrawal motion, Jeronimo testi-
fied that he had many discussions with Kolego about “the
merits of the plea offer” and the Sentencing Guidelines, and
that his “understanding” based on these discussions was that
he would receive a sentence of 87 months as Kolego “predic-
t[ed].” Jeronimo also testified that Kolego never raised the
possibility of “career offender” sentencing during any of their
discussions and that he would not have accepted the plea offer
if he had known that he would receive a sentence of 151
months.

On cross-examination, Jeronimo continued to assert that he
had “made a deal” with Kolego, stating: “I trusted in him . . .
and I signed for 87 months. When I realized that the sentence
was longer, if I had realized, if I known that, I wouldn’t have
sign[ed] it.” However, he conceded that he entered his plea
with the understanding that his sentencing would be up to the
judge, not Kolego. Jeronimo also admitted that “the deal that
[he] made with his lawyer did not include what this judge was
going to sentence [him] to”; that the government had warned
him at his change of plea hearing that his prior convictions
would be raised at sentencing, and the district court had
observed that those facts would “likely affect the extent” of
his sentence; that he had pleaded guilty with the understand-
ing that he could receive a sentence of up to twenty years; and
that he had received the benefit of his bargain because 151
months was less than twenty years.

In denying Jeronimo’s motion to withdraw his plea, the dis-
trict court noted that Jeronimo’s argument that his defense
attorney “blew the career offender issue” was “made without
 UNITED STATES v. JERONIMO 2095
evidence from the attorney,” and that “even if that was the
case . . . a perfect attorney doesn’t exist.” This timely appeal
followed.

II

We lack jurisdiction to entertain appeals where there was
a valid and enforceable waiver of the right to appeal. United
States v. Vences, 169 F.3d 611, 613 (9th Cir. 1999) (“It would
overreach our jurisdiction to entertain an appeal when the plea
agreement effectively deprived us of jurisdiction.”). 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. United States v. Ventre, 338 F.3d 1047, 1051
(9th Cir. 2003). 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. Joyce,
357 F.3d 921, 922 (9th Cir. 2004); United States v. Martinez,
143 F.3d 1266, 1270-71 (9th Cir. 1998).

A

[1] We first must address the issue of whether Jeronimo’s
waiver of his right to appeal precludes his challenge on direct
appeal to the district court’s rejection of his request to with-
draw his guilty plea, based on his assertion that fair and just
reasons supported a change of plea. “Our analysis begins with
the fundamental rule that plea agreements are contractual in
nature and are measured by contract law standards.” United
States v. Clark, 218 F.3d 1092, 1095 (9th Cir. 2000) (internal
citation and quotation marks omitted). This customary reli-
ance on contract law applies to interpretation of an appeals
waiver within a plea agreement, and we will generally enforce
the plain language of a plea agreement if it is clear and unam-
biguous on its face. United States v. Nunez, 223 F.3d 956, 958
(9th Cir. 2000); see also Martinez, 143 F.3d at 1271.
2096 UNITED STATES v. JERONIMO
[2] In Martinez, the defendant entered into a plea agree-
ment with language similar to that here. The Martinez plea
agreement provided that “[a]ny plea of guilty entered by
Defendant pursuant to this agreement and any judgment and/
or sentence based thereon . . . will not be the subject of legal
challenge by Defendant.” 143 F.3d at 1270. In rejecting the
defendant’s attempt to appeal his sentence on the grounds that
the district court had misapplied the Sentencing Guidelines,
we held that the defendant’s “waiver of any ‘legal challenge’
encompasses all appeals on all grounds except for a few nar-
row exceptions,2 none of which apply here.” Id. at 1271. Simi-
larly, in Nunez we held that an agreement stating that the
defendant “knowingly and voluntarily waive[s] his right to
appeal any sentence imposed by the Court” constituted an
“unmistakable” waiver of the right to appeal. 223 F.3d at 958
(internal quotation marks omitted).

[3] Here, Jeronimo’s agreement provides in pertinent part
that:

By accepting the benefits of this agreement and if
sentenced by the Court to a term of imprisonment of
2
There are a few well-established exceptions to appeal waivers under
our case law. For example, a waiver of appeal will not bar an appeal where
the defendant’s guilty plea was not taken in compliance with Rule 11 of
the Federal Rules of Criminal Procedure. United States v. Portillo-Cano,
192 F.3d 1246, 1252 (9th Cir. 1999) (holding that waiver of right to appeal
will not preclude an appeal where defendant’s plea allocution did not con-
form to the requirements of Rule 11). We have also held that where a
judge advises a defendant, without qualification, that he or she has a right
to appeal, the defendant will be deemed to have such a right even though
it was waived in the plea bargain. United States v. Buchanan, 59 F.3d 914,
917-18 (9th Cir. 1995). Additionally, a defendant can appeal his or her
sentence notwithstanding a waiver of the right to appeal where the sen-
tence imposed violates the law, United States v. Littlefield, 105 F.3d 527,
528 (9th Cir. 1996), or is not in accordance with the negotiated agreement.
United States v. Bolinger, 940 F.2d 478, 480 (9th Cir. 1991). However, we
do not consider whether these exceptions apply here because they were
not raised in Jeronimo’s appeal.
 UNITED STATES v. JERONIMO 2097
less than the statutory maximum of 20 years, Mr.
Jeronimo waives any and all rights to appeal, and all
his waivable statutory rights to file a petition pursu-
ant to 28 U.S.C. § 2255 challenging the length of his
sentence.

This language plainly states that Jeronimo waived his right to
appeal his sentence on any and all grounds in exchange for
a sentence of less than twenty years and various other benefits
under the agreement. Thus, based on Martinez and Nunez, we
conclude that Jeronimo’s plea agreement clearly encompasses
his right to bring the present appeal.

Jeronimo contends that the waiver language only covers his
right to appeal on the grounds that his sentence was improper
or violated the terms of the plea agreement; he argues that we
have jurisdiction because the waiver does not specifically pre-
clude him from appealing on the grounds that the district
court abused its discretion. However, we dismissed a similar
argument in United States v. Schuman, 127 F.3d 815, 817 (9th
Cir. 1997), where the appellant asserted that a plea agreement
providing that he “waive[d] . . . any right to appeal or collater-
ally attack the conviction and sentence” did not preclude him
from challenging the district court’s application of the federal
Sentencing Guidelines because the agreement failed to “spe-
cifically address his statutory right to appeal” on that basis.
There we stated: “We reject [the appellant’s] contention that
the language of the plea agreement does not specifically con-
template the statutory right to appeal incorrect applications of
the Sentencing Guidelines for it would render the waiver
meaningless.” Id. Accordingly, while Jeronimo’s plea agree-
ment does not specifically contemplate the possibility of an
appeal based on the district court’s denial of a motion to with-
draw, its broad language clearly bars him from bringing this
appeal.

B

[4] Having concluded that Jeronimo’s waiver included the
appeal he now advances, we next consider whether his waiver
2098 UNITED STATES v. JERONIMO
was knowing and voluntary. We follow the rule that a waiver
of the right to appeal is knowing and voluntary where the plea
agreement as a whole was knowingly and voluntarily made.
As we stated in Portillo-Cano:

[W]aivers of appeal must stand or fall with the
agreement of which they are a part. If the agreement
is voluntary, and taken in compliance with Rule 11,
then the waiver of appeal must be honored. If the
agreement is involuntary or otherwise unenforceable,
then the defendant is entitled to appeal.

192 F.3d at 1250 (internal quotation marks and citation omit-
ted).

[5] At least on its face, the district court’s extensive Rule
11 colloquy with Jeronimo shows that Jeronimo’s plea was
knowingly and voluntarily made. The district court properly
advised Jeronimo of the nature of the drug charges against
him, the consequences of conviction, and the constitutional
rights he was waiving by pleading guilty. The district court
also summarized each of the terms of Jeronimo’s plea agree-
ment, including the appeal waiver provision, and informed
Jeronimo that his maximum possible penalty under the agree-
ment was 20 years imprisonment and a fine of $1 million.
Noting that the government would bring “relevant facts” to its
attention, the district court further advised Jeronimo that it
could depart from the applicable Sentencing Guidelines
ranges for various reasons and told him not to rely on sentenc-
ing predictions made by others because “the judge decides the
sentence.”

Jeronimo responded by acknowledging that he had dis-
cussed the Sentencing Guidelines with Kolego, and assuring
the district court that his plea was “freely and voluntarily
made.” Finally, when the government warned that it would
raise Jeronimo’s prior convictions and status as an illegal
alien and prison escapee at sentencing, the district court asked
 UNITED STATES v. JERONIMO 2099
Jeronimo if he understood that such facts would “likely affect
[his] sentence,” and Jeronimo said “yes.”

Nonetheless, Jeronimo claims that his attorney’s failure to
advise him of all the possible consequences of a guilty plea
deprived him of the information necessary to render his plea
— and the waiver of appeal contained therein — truly know-
ing and voluntary.3

To demonstrate ineffective assistance of counsel, a defen-
dant must show: (1) that his counsel’s performance was defi-
cient; and (2) that the deficient performance prejudiced his
defense. Strickland v. Washington, 466 U.S. 668, 687 (1984).
This test applies to challenges to guilty pleas based on inef-
fective assistance of counsel claims. Hill v. Lockhart, 474
U.S. 52, 58 (1985).

We first consider whether counsel Kolego’s performance is
shown to be deficient on the record before us. “A defendant
who pleads guilty upon the advice of counsel may only attack
the voluntary and intelligent character of his guilty plea by
showing that the advice he received from counsel was not
within the range of competence demanded of attorneys in
criminal cases.” United States v. Signori, 844 F.2d 635, 638
(9th Cir. 1988). Because of the difficulties in evaluating attor-
ney performance in hindsight, courts considering ineffective
counsel claims “indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional
assistance.” Strickland, 466 U.S. at 689.

Here, the main thrust of Jeronimo’s ineffective assistance
of counsel claim is that his attorney’s failure to consider and
inform him of the possibility that he might be sentenced as a
career offender constituted a “misrepresentation” that justifies
withdrawal of his plea.
3
Effectiveness of counsel is a mixed question of law and fact, reviewed
de novo. United States v. Alaimalo, 313 F.3d 1188, 1191 (9th Cir. 2002).
2100 UNITED STATES v. JERONIMO
A guilty plea cannot be “induced by . . . misrepresentation.”
Signori, 844 F.2d at 638 (quoting Brady v. United States, 397
U.S. 742, 755 (1970)). We have also held that a defendant
who pleads guilty in reliance on his or her attorney’s “gross
mischaracterization of the likely outcome” of his or her case
may be entitled to withdraw the plea on ineffective assistance
of counsel grounds. Iaea v. Sunn, 800 F.2d 861, 865 (9th Cir.
1986); see also Michlin v. Walker, 34 F.3d 896, 899 (9th Cir.
1994) (“We have held that an erroneous prediction by a
defense attorney concerning sentencing does not entitle a
defendant to challenge his guilty plea, although an exception
might be made in a case of gross mischaracterization of the
likely outcome.”) (internal quotation marks and citations
omitted).

[6] However, as a general rule, we do not review challenges
to the effectiveness of defense counsel on direct appeal.
United States v. McKenna, 327 F.3d 830, 845 (9th Cir. 2003).
Thus, in McKenna, we declined to review an ineffective assis-
tance of counsel claim on direct appeal because we con-
cluded, inter alia, that we could not evaluate the defendant’s
claim that counsel should have filed various motions because
the “record [wa]s . . . not developed with respect to why [the
defendant’s] attorneys felt that the motions [the defendant]
wanted filed were not warranted by the evidence.” Id.

To similar effect is our decision in United States v.
Laughlin, 933 F.2d 786, 788-89 (9th Cir. 1991), where a
defendant whose probation was revoked brought an ineffec-
tive assistance claim on direct appeal and contended that his
counsel’s performance during his revocation hearing was so
constitutionally deficient as to merit a new hearing. We
declined to address the defendant’s claim because “[t]he
record contain[ed] little more than generalized assertions of
incompetency.” Id. at 789. We stressed that “[f]ormer defense
counsel has had no opportunity to explain his actions” and
that the defendant had not “established any foundation for
 UNITED STATES v. JERONIMO 2101
demonstrating that the alleged errors actually prejudiced the
outcome of the hearing.” Id.

The rationale for our general rule, as explained in United
States v. Birges, 723 F.2d 666, 670 (9th Cir. 1984), is that
ineffectiveness of counsel claims “usually . . . cannot be
advanced without the development of facts outside the origi-
nal record.” Stated another way, a “[c]hallenge [to effective-
ness of counsel] by way of a habeas corpus proceeding is
preferable as it permits the defendant to develop a record as
to what counsel did, why it was done, and what, if any, preju-
dice resulted.” Laughlin, 933 F.2d at 788-89.

[7] We have recognized two extraordinary exceptions to
this general rule: We have permitted ineffective assistance
claims to be reviewed on direct appeal in the unusual cases
(1) where the record on appeal is sufficiently developed to
permit determination of the issue, or (2) where the legal repre-
sentation is so inadequate that it obviously denies a defendant
his Sixth Amendment right to counsel. United States v. Day-
child, 357 F.3d 1082, 1095 (9th Cir. 2004).

[8] In these exceptional cases, the reason for our general
rule is inapplicable because development of further evidence
is unnecessary to assess whether counsel performed below the
constitutionally required standard. See, e.g., United States v.
Anderson, 850 F.2d 563, 565 n.1 (9th Cir. 1988). But neither
of these exceptions apply here; as Jeronimo points out, the
record contains no evidence from Kolego. Contrary to the dis-
sent’s argument, we do not suggest that evidence from Kolego
is required because he might have made a “strategic decision”
not to inform Jeronimo about the career offender issue.
Rather, such evidence is necessary because, on the current
state of the record, we cannot determine whether Kolego in
fact failed to inform Jeronimo about that issue at all. Jeronimo
cannot, at this stage on direct appeal, make out an ineffective
assistance claim.
2102 UNITED STATES v. JERONIMO
[9] In light of the scope of the record on this direct appeal,
we cannot now conclude that Jeronimo has shown that his
plea agreement, which included an unequivocal waiver of his
appeal rights, was involuntary and unenforceable. Further,
“we will not remand a case from direct appeal for fact-finding
related to an ineffective assistance of counsel claim, but allow
a defendant to pursue the issue in district court collateral pro-
ceedings.” United States v. Reyes-Platero, 224 F.3d 1112,
1117 (9th Cir. 2000).4
4
We leave open the possibility that Jeronimo might raise his ineffective
assistance argument on federal habeas procedure, through a § 2255
motion, notwithstanding that Jeronimo’s appeal waiver covered “all his
waivable statutory rights to file a petition pursuant to 28 U.S.C. § 2255
challenging the length of his sentence.”
Although a defendant may waive the statutory right to file a § 2255
petition “challenging the length of his sentence,” we do not decide
whether such language would necessarily encompass a claim challenging
the knowing and voluntary nature of the plea agreement (and accompany-
ing waiver of § 2255 rights). Further, we do not decide whether even an
express waiver of all § 2255 rights could be enforced to preclude an inef-
fective assistance claim implicating the voluntariness of the waiver itself.
See United States v. Pruitt, 32 F.3d 431, 433 (9th Cir. 1994) (expressing
“doubt” that plea agreement could waive such a claim, but declining to
reach the issue).
Those of our sister circuits considering this issue have uniformly held
that a waiver of § 2255 rights cannot be enforced against a petitioner chal-
lenging the waiver’s validity on ineffective assistance of counsel grounds.
See United States v. White, 307 F.3d 336, 341 (5th Cir. 2002) (“[A] waiver
of appeal may not be enforced against a section 2255 petitioner who
claims that ineffective assistance of counsel rendered that waiver unknow-
ing or involuntary.”); United States v. Cockerham, 237 F.3d 1179, 1187
(10th Cir. 2001) (“[W]e hold that a plea agreement waiver of postconvic-
tion rights does not waive the right to bring a § 2255 petition based on
ineffective assistance of counsel claims challenging the validity of the plea
or the waiver.”); DeRoo v. United States, 223 F.3d 919, 924 (8th Cir.
2000) (“A defendant’s plea agreement waiver of the right to seek section
2255 post-conviction relief does not waive defendant’s right to argue, pur-
suant to that section, that the decision to enter into the plea was not know-
ing and voluntary because it was the result of ineffective assistance of
counsel.”); Jones v. United States, 167 F.3d 1142, 1145 (7th Cir. 1999)
 UNITED STATES v. JERONIMO 2103
III

[10] We lack jurisdiction to entertain this appeal because
the appeal waiver in Jeronimo’s plea agreement is unambigu-
ous and the record as it is currently constituted fails to demon-
strate that the agreement was not knowingly and voluntarily
made.5

(permitting defendant to file a § 2255 petition despite cooperation agree-
ment containing § 2255 waiver because “[j]ustice dictates that a claim of
ineffective assistance of counsel in connection with the negotiation of a
cooperation agreement cannot be barred by the agreement itself — the
very product of the alleged ineffectiveness”). However, because the issue
is not squarely presented in this case on direct appeal, we leave for another
day our assessment of whether a waiver such as made by Jeronimo can be
challenged through a § 2255 motion questioning the validity of the waiver.
5
The dissent contends that we do not address whether Jeronimo’s plea
“was knowingly and voluntarily made in light of his lawyer’s representa-
tions.” We disagree. We reviewed whether the plea was knowing and vol-
untary in light of the district court’s plea colloquy. Because that colloquy
was a model of what needs to be reviewed under Rule 11, the plea was
not unknowing or involuntary on its face. The dissent incorrectly urges
that we cite no authority for the statement that the plea was knowing and
voluntary on its face because it satisfied Rule 11. We quoted from
Portillo-Cano the rule that a waiver must be honored when the plea agree-
ment is voluntary and taken in compliance with Rule 11. 192 F.3d at 1250.
Because the point of Rule 11 is to ensure that a plea is knowing and volun-
tary, Rule 11 also is authority for our decision. See Fed. R. Crim. P. 11(c)-
(d) (2001) (provisions entitled “Advice to Defendant” and “Insuring That
the Plea is Voluntary”); Fed. R. Crim. P. 11 advisory committee’s note,
1975 Enactment (amended Rule 11(c) and (d) outline advice the court
must give the defendant and “the steps that the court must take to insure
that a . . . plea has been voluntarily made.”). More precedents might be
considered, see, e.g., McCarthy v. United States, 394 U.S. 459, 465 (1969)
(Rule 11 “is designed to assist the district judge in making the constitu-
tionally required determination that a defendant’s guilty plea is truly vol-
untary”); United States v. Youpee, 419 F.2d 1340, 1344 (9th Cir. 1969)
(“Rule 11 precludes a judge from accepting a defendant’s plea of guilty
without ‘first addressing the defendant personally and determining that the
plea is made voluntarily with understanding of the nature of the charge
and the consequences of the plea.’ ”), but they lead to the same conclu-
2104 UNITED STATES v. JERONIMO
APPEAL DISMISSED.

sion: A colloquy satisfying Rule 11’s requirements will lead to a plea
being considered knowing and voluntary, unless some misrepresentation
or gross mischaracterization by counsel has tainted the plea. See Section
II.B. If Jeronimo’s counsel made erroneous predictions, that would be
insufficient under our precedents to render his plea unknowing or involun-
tary, unless Jeronimo could establish that his counsel made misrepresenta-
tions or gross mischaracterizations. See id.
The unavoidable problem with the dissent’s argument is that the record
contains no evidence of such misrepresentation or gross mischaracteriza-
tion by counsel Kolego. The dissent urges that we ignore Jeronimo’s hear-
ing testimony and are “plain wrong” in suggesting that “there is no record
on the issue” of ineffectiveness. We did not ignore Jeronimo’s testimony,
and have not said that there is no record, but more precisely that the record
is inadequate as it now stands in light of Jeronimo’s comprehensive plea
colloquy and the absence of evidence of his counsel’s position. For while
Jeronimo testified that he understood he had a “deal” with Kolego for a
lesser sentence, he did not give evidence of any misrepresentation or gross
mischaracterization by Kolego, and in his colloquy he acknowledged that
he understood the judge would set the sentence regardless of what Kolego
might have predicted. This is why the case cannot yield immediate relief,
although Jeronimo may seek relief through habeas proceedings if he can
marshal supportive evidence.
The dissent also argues that ineffective assistance was raised and liti-
gated in the district court, as a reason not to defer to collateral proceed-
ings. But the issues whether there were misrepresentations or gross
mischaracterizations were not litigated. They were not even raised explic-
itly. Instead, Jeronimo’s new counsel at the plea withdrawal hearing said
that he was “not telling the court that [Jeronimo] was tricked by [former
counsel Kolego],” and Jeronimo’s testimony was only that he understood
he had a deal with Kolego for a lighter sentence and that he had been
unaware of the possibility of career offender sentencing.
The dissent’s reliance on Signori is unpersuasive. In Signori, we
rejected an ineffective assistance claim on direct appeal because although
the defendant had submitted nothing more than his “unsworn contention
. . . that he had been misled by counsel,” his original counsel had submit-
ted a sworn affidavit specifically denying each of the defendant’s allega-
tions. 844 F.2d at 639. By contrast, here we have nothing from Jeronimo
or his former counsel to illuminate “what counsel did, why it was done,
and what, if any, prejudice resulted.” Laughlin, 933 F.2d at 788-89. While
 UNITED STATES v. JERONIMO 2105
BERZON, Circuit Judge, dissenting:

On March 17, 2003, Pascual Jeronimo filed a pro se motion
to withdraw his guilty plea due to “inadequate and fraudulent
representation by [his] attorney.” At the hearing on this
motion, Jeronimo, represented by new counsel, was asked
whether, “[d]uring the conversations with your attorney, did
the phrase ‘career offender’ ever come up?” He answered
“No, he didn’t tell me anything about that,” and maintained
that “I made a deal with my attorney, I trusted in him, sir, and
I signed for 87 months. When I realized that the sentence was
longer, if I had realized, if I known [sic] that, I wouldn’t have
sign [sic] it.” After a hearing that included a lengthy examina-
tion and cross-examination of Jeronimo and argument from
counsel on both sides, the district court, noting that the accu-
sation that the “defense attorney blew the career offender
issue” was made without evidence from the attorney, deter-
mined that the truth or falsity of Jeronimo’s account did not
matter. Rather, said the district court, “even if that was the
case” — that is, even if the defense attorney did “bl[o]w the
career offender issue” — “a perfect attorney doesn’t exist, and
the question is whether a defendant has been properly
informed of the range of consequences that could occur”
(emphasis added). The district court then denied Jeronimo’s
motion to withdraw his guilty plea.

As the majority recognizes, the appeal waiver “must stand
or fall with the agreement of which [it is] a part,” and is there-
fore valid only if the plea agreement itself was knowingly and

there is Jeronimo’s testimony on what he thought his sentence per a “deal”
with counsel would be, there is no evidence in the record that counsel mis-
led him or grossly mischaracterized the sentence he would receive. Nor is
there evidence from counsel to prove the converse, as in Signori.
The dissent’s argument that we should remand for fact-finding runs
contrary to our circuit’s precedent that the proper procedure is not to
remand but to let Jeronimo develop his argument in collateral proceedings.
See Section II.B.
2106 UNITED STATES v. JERONIMO
voluntarily made.1 Ante at 2098 (quoting United States v.
Portillo-Cano, 192 F.3d 1246, 1250 (9th Cir. 1999)). Citing
United States v. Signori, 844 F.2d 635 (9th Cir. 1988), the
majority also recognizes that attorney misrepresentation or
gross mischaracterization can invalidate a guilty plea. Ante at
2099. Given these principles, the validity of the appeal waiver
is bound up with the merits question that Jeronimo presents:
whether he should have been allowed to withdraw his guilty
plea because of erroneous advice by his counsel regarding the
applicable sentencing provisions.

Yet, the majority never addresses the crux of this case —
whether Jeronimo’s plea was knowingly and voluntarily made
in light of his lawyer’s representations. Instead, the majority
recites that ineffective assistance claims are generally better
suited for collateral review, and ducks the central issue. This
decision, made despite the fact that the legal question at issue
was raised in and decided by the district court after a full
hearing, relegates the most salient inquiry to possible — but
not certain — resolution on a § 2255 habeas petition.

At bottom, the majority offends logic with a basic “chicken
and egg” scenario: It relies on a waiver whose validity is con-
tingent upon the answer to a legal question to preclude the
consideration of that very legal question.

Not surprisingly, given the convoluted nature of its reason-
ing, the majority’s approach cannot be reconciled with our
precedents. This circuit has dealt with ineffective assistance
of counsel issues on appeal in connection with knowing and
voluntariness challenges to plea agreements. I therefore
respectfully dissent.
1
I agree with the majority that the waiver is within the terms of the plea
agreement.
 UNITED STATES v. JERONIMO 2107
I

Before proceeding to the issues regarding Jeronimo’s inef-
fective assistance claim against his counsel, the majority
begins by evaluating the Rule 11 colloquy. Without citing a
single authority,2 the majority indicates that the colloquy “on
its face . . . shows that Jeronimo’s plea was knowingly and
voluntarily made.” Ante at 2098.

Jeronimo stated under oath, however, that he did not under-
stand the plea agreement because he was never informed of
the fact that he qualified as a career criminal. He also testified
that his counsel knew of his prior convictions, and that “I
signed for 87 months.” If one believes those representations,
and the district court did not state that it disbelieved them,
then Jeronomio did not understand the agreement when he
talked to his attorney Kolego, or when he began the Rule 11
colloquy with the district court judge, or during the Rule 11
colloquy when the judge asked him if he had discussed the
sentencing guidelines with his attorney, or when the govern-
ment mentioned that this prior conviction could affect his sen-
tence, or after the Rule 11 colloquy. For, as far as the record
shows, no one — not Kolego, not the district court judge, not
the prosecutor — ever mentioned that it was mandatory that
the career offender provision of the law applied to Jeronimo,
and that the minimum sentence he could receive was therefore
151 months.3 Mentioning the maximum statutory sentence did
2
The majority suggests in a footnote at the end of its opinion that its ref-
erence to United States v. Portillo-Cano, 192 F.3d 1246 (9th Cir. 1999),
supports the idea that “a waiver must be honored when the plea agreement
is voluntary and taken in compliance with Rule 11.” See ante at 2103-04
n.5 (emphasis added). The case does stand for that proposition. The ques-
tion here is not whether the judge complied with Rule 11; it is, instead,
whether the plea agreement was voluntary. As the very language quoted
by the majority makes clear, both conditions are necessary for a plea
agreement to stand.
3
Under the Sentencing Guidelines, a defendant must be classified as a
“career offender” so long as:
2108 UNITED STATES v. JERONIMO
not take care of the problem, nor did informing Jeronimo that
his sentence was ultimately up to the judge. The problem was
that his lawyer had erroneously informed him that an 87
month sentence was at least a possibility (leaving aside any
prediction or “deal” regarding that sentence), when it was not.
So Jeronimo had erroneous information, precluding him from
accurately evaluating his options and risks. In other words, his
decision to plead guilty was not “knowing,” even if it
appeared otherwise to the judge who took the plea.

Importantly, the problem here was not just a failure to
make an accurate prediction or other assessment of the possi-
bilities. It was an absolute certainty that, under the sentencing
guidelines, Jeronimo would qualify as a “career criminal” if
he pled guilty. See U.S.S.G. § 4B1.1 (2002); supra note 3.

(1) the defendant was at least eighteen years old at the time the
defendant committed the instant offense of conviction; (2) the
instant offence of conviction is a felony that is either a crime of
violence or a controlled substance offense; and (3) the defendant
has at least two prior felony convictions of either a crime of vio-
lence or a controlled substance offense.
U.S.S.G. § 4B1.1(a) (2002). Additionally, if the specified offense level for
a career offender is greater than the offense level otherwise applicable,
then the higher offense level “shall apply.” Id. § 4B1.1(b) (emphasis
added).
Jeronimo was 34 years old at the time of sentencing, and the offense in
this case is “Possession with Intent to Distribute Methamphetamine and
Heroin,” which qualifies as a “controlled substance offense” because each
offense is punishable by up to 20 years imprisonment. See 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(C); U.S.S.G. § 4B1.2(b) (defining “controlled sub-
stance offense”). Previously, Jeronimo was convicted of Assault II, which
qualifies as a “crime of violence,” see id. § 4B1.2(a), and “Delivery of a
Controlled Substance,” which qualifies as a “controlled substance
offense,” see id. § 4B1.2(b). Jeronimo therefore qualified as a “career
offender” if he pled or was found guilty of the charges underlying this
appeal, and his base offense level was required to be set at 32, with a mini-
mum sentence of 151 months due to his Criminal History category and 3-
level reduction for acceptance of responsibility. See id. § 4B1.1(b).
 UNITED STATES v. JERONIMO 2109
Furthermore, the lawyer had the prior conviction information
necessary to so inform Jeronimo.4 This case therefore con-
cerns a defendant whose counsel left him uninformed about
his certain legal fate if he accepted a plea agreement, and
instead affirmatively indicated that a lower sentence was
possible than was actually the case.

II

Given this predicament, one can easily understand why
Jeronimo claimed in the district court, as the basis for his
motion to withdraw his guilty plea, that the advice of his
counsel was ineffective. The majority’s ultimate reason for
refusing to hear that claim is that we generally do not hear
ineffective assistance claims on direct appeal. The reason for
that policy, however, is that normally, the record on appeal is
deficient, as there was no litigation on effectiveness of coun-
sel in the district court. In this case, however, the ineffective-
ness issue and the merits question, withdrawal of the guilty
plea, collapse into one another and turn on identical facts.
Consequently, there was a hearing on the ineffectiveness
issue, where Jeronimo presented sworn testimony. To suggest
that there is no record on the issue is therefore just plain
wrong.

During the August 18, 2003, hearing concerning the motion
to withdraw Jeronimo’s guilty plea, Jeronimo testified under
oath. This is what he said:

QUESTION: And did you discuss the merits of the
plea offer many times with your attorney?
4
This case is quite different from one in which the lawyer is not aware
of his client’s prior convictions when he provides advice concerning
pleading guilty. In that circumstance, the attorney’s obligation is to make
a reasonable inquiry regarding priors, or to inform the client of the range
of possibilities depending on what his client’s record turns out to be.
2110 UNITED STATES v. JERONIMO
ANSWER: Yes, a number of times.

QUESTION: And, finally, he convinced you that
you should accept the plea offer; is that correct?

ANSWER: Yes.

QUESTION: And during your discussions with your
attorney, did — do you know if he was aware of
your prior criminal history?

ANSWER: Yes, he did know.

QUESTION: He knew that you had a prior felony
conviction for drug distribution?

ANSWER: Excuse me, I’m sorry?

QUESTION: Your attorney knew that you had a
prior conviction for drug distribution?

ANSWER: Yes.

QUESTION: Your attorney knew of that?

ANSWER: Yes, he knew that.

QUESTION: And he also knew, based upon your
discussions with him, that had you [sic] a prior fel-
ony assault conviction; is that correct?

ANSWER: Yes.

QUESTION: In your many discussions with your
attorney, did he predict — did you discuss the sen-
tencing guidelines?

ANSWER: Yes, we did.
 UNITED STATES v. JERONIMO 2111
QUESTION: And did he predict what your sentence
would be if you accepted the plea offer?

ANSWER: Yes.

QUESTION: And what was your understanding of
the sentence you would receive based upon the plea
offer?

ANSWER: Eighty-seven months.

QUESTION: During the conversations with your
attorney, did the phrase “career offender” ever come
up?

ANSWER: No, he didn’t tell me anything about that.

....

QUESTION: If you had known that you would
receive a sentence of 151 months, would you have
accepted the plea offer?

ANSWER: No, I would not have.

....

QUESTION: And all your lawyers have told you
when it comes to sentencing that that would be left
up to the judge, correct?

ANSWER: Yes. But I made a deal with my attorney,
I trusted in him, I trusted in him, sir, and I signed for
87 months. When I realized that the sentence was
longer, if I had realized, if I known [sic] that, I
wouldn’t have sign [sic] it.

....
2112 UNITED STATES v. JERONIMO
QUESTION: In fact, in this particular case, Judge
Hogan, the judge you are in front of today, made that
clear to you during the course of the plea petition,
that it was going to be up to him what sentence you
were going to get, correct?

ANSWER: Yes, that’s fine what you say, but what
happened to the deal that I made with my attorney?

QUESTION: The deal that you made with your law-
yer, sir, did not include what this judge was going to
sentence you to, correct?

ANSWER: Yes.

QUESTION: And, in fact, when the court asked you,
this judge here, asked you is your guilty plea freely
and voluntarily made, with a good understanding of
the nature of the charges against you, and the matters
in this guilty plea petition and plea bargain letter,
and those things we’ve talked about today, you
answered yes through an interpreter, did you not?

ANSWER: Because I made a deal with my attorney.
I had spoken to him.

QUESTION: And then when the judge said [“]I’ll
accept the guilty plea,[”] I told you something. And
what I said was, “Please the court, before accepting
the plea, I want to make sure that the defendant” —
that would be you, sir — “understands that under the
relevant facts that the government is going to bring
to the court’s attention and to probation’s attention
is the fact the government will contend he has a prior
delivery of a controlled substance conviction in
1994; and a felony assault in the second degree, two
counts in 1995; that he was an illegal alien at the
time of these drug trafficking crimes, as well as
 UNITED STATES v. JERONIMO 2113
escapee and a fugitive from the Oregon Department
of Corrections.

I just want those relevant facts to be included in
this colloquy so that Mr. Jeronimo is aware that
that’s something the government may bring up, in
fact, will bring up at sentencing before entering vol-
untarily his guilty plea.”

Do you remember me telling you that?

ANSWER: Yes, sir, I do.

....

QUESTION: And the court went further, this judge
said, and do you understand that if the party (sic)
agrees with those facts, it will likely affect the extent
of your sentence?

ANSWER: I had talked about that with my attorney.

....

QUESTION: So when you pled guilty, you under-
stood that you could face a maximum sentence of
more than 151 months, did you not?

ANSWER: He never talked about — my attorney
never talked about that. If I had known that, I would
not have plead guilty.

....

QUESTION: Didn’t the court tell you, “the plea
petition says the maximum sentence is 20 years
imprisonment”? You heard that, didn’t you?
2114 UNITED STATES v. JERONIMO
ANSWER: Yes.

QUESTION: You still pled guilty, right?

ANSWER: Because I had spoken to my attorney, I
made a deal.

The government presented no testimony controverting Jeroni-
mo’s sworn testimony. Nor did the judge decide whether the
attorney did fail to provide Jeronimo with essential informa-
tion.

The majority ignores Jeronimo’s sworn testimony. It cannot
be the case that because the testimony was uncontroverted, an
appellate court, in the absence of any district court credibility
determination, can simply assume the opposite is true. Thus,
although the majority suggests that Jeronimo cannot make out
an ineffective assistance claim because “the record contains
no evidence from Kolego,” ante at 2101, this suggestion is
without any basis. The government could have put on such
evidence but did not. Jeronimo was not required to, once he
told the court his version of events.

Moreover, on the merits of the ineffective assistance claim,
a failure to inform one’s client of the mandatory application
of a sentencing provision can never qualify as a “strategic
decision.” We are not evaluating this attorney’s decisions in
front of a judge or jury. Instead, we are considering only
whether the attorney deficiently advised his client, so that his
client’s plea was not knowing and voluntary. See, e.g., Chizen
v. Hunter, 809 F.2d 560 (9th Cir. 1987); Iaea v. Sunn, 800
F.2d 861 (9th Cir. 1986).

The very reason for a Rule 11 plea colloquy is to ensure
that “the criminal defendant who pleads guilty understands
exactly what that plea means.” United States v. Rios-Ortiz,
830 F.2d 1067, 1070 (9th Cir. 1987). As this court recognized
in Iaea, “ ‘an intelligent assessment of the relative advantages
 UNITED STATES v. JERONIMO 2115
of pleading guilty is frequently impossible without the assis-
tance of an attorney.’ ” 800 F.2d at 865 (quoting Brady v.
United States, 397 U.S. 742, 748 n.6 (1970)). The majority’s
suggestion that an attorney has strategic discretion in advising
his client of the consequences of a guilty plea disregards the
fundamental tenet that “counsel [has] a duty to supply crimi-
nal defendants with necessary and accurate information.” Id.
How can the failure to fulfill a fundamental duty — a failure
that results in a significantly longer prison sentence than his
client would have agreed or pled to — possibly qualify as
counsel’s strategic decision?

I conclude that, if Jeronimo’s testimony is credited, the
record supports his contention that Jeronimo’s guilty plea was
not knowing and voluntary, because he was misinformed by
his counsel regarding the sentencing options.5

III

The majority thus stumbles most fundamentally when it
suggests that we cannot review this challenge to Jeronimo’s
appeal waiver.

This case is not like most ineffectiveness challenges. In
most cases, such a challenge is not made until appeal, so there
is no record in the court of conviction concerning the issue.
Here, Jeronimo raised the very same knowing and voluntary
waiver issue in the district court as the basis for his contention
that he should be allowed to withdraw his plea. The district
court had a hearing on the issue, at which it took Jeronimo’s
5
The majority does recognize that a defendant’s plea may falter based
upon an attorney’s “gross mischaracterization,” but maintains that
Jeronimo “did not give evidence of any misrepresentation or gross mis-
characterization by Kolego.” Ante at 2104. I am perplexed to imagine
what could be more of a “gross mischaracterization” than telling a client
that he could receive a sentence of 87 months, where the client’s prior his-
tory, known to the attorney, dictates that such a sentence is not possible,
and the minimum sentence is 151 months.
2116 UNITED STATES v. JERONIMO
sworn testimony on this issue. The government had notice of
the ineffective assistance issue in the Motion to Withdraw
Plea of Guilty Due to Inadequate and Fraudulent Representa-
tion By Legal Counsel, but did not put on any opposing testi-
mony.

In these special circumstances — where the ineffective
assistance issue was properly raised and litigated in the dis-
trict court — this court does have the evidence necessary to
determine whether Jeronimo’s plea was “knowingly and vol-
untarily” made. See United States v. Laughlin, 933 F.2d 786,
788-89 (9th Cir. 1991) (explaining that the reason habeas is
often a preferable posture for ineffectiveness challenges is to
establish “ ‘what counsel did, why it was done, and what, if
any, prejudice resulted’ ” (quoting United States v. Pope, 841
F.2d 954, 958 (9th Cir. 1988))). Based on Jeronimo’s sworn
testimony, we know what counsel did — he failed to advise
Jeronimo that the he would be sentenced as a “career crimi-
nal,” and instead informed him erroneously that a lesser sen-
tence was possible. For the reasons discussed supra, we know
that Kolego had a duty to provide this information. It was not
in Kolego’s strategic discretion to erroneously inform
Jeronimo in this manner. Finally, we know what prejudice
resulted — Jeronimo agreed to a plea that, as he testified
under oath, he would not have accepted had he known of the
“career criminal” provision. As no strategic discretion could
justify Kolego’s actions, “it is not necessary to expand the
record because in determining reasonableness we need go no
further than ruling” that such a failure to advise is contrary to
law. United States v. Anderson, 850 F.2d 563, 565 n.1 (9th
Cir. 1988). Given that there was a hearing in the lower court
regarding this issue in which Jeronimo was questioned and
testified, this court can and should address Jeronimo’s chal-
lenge.6
6
The majority, as discussed supra, seems to deem Kolego’s testimony
indispensable. I do not agree that an attorney’s testimony is necessary for
 UNITED STATES v. JERONIMO 2117
Notwithstanding the majority’s assertion to the contrary,
the Ninth Circuit has considered and decided the question of
ineffective assistance of counsel pursuant to a challenge to a
plea. See Signori, 844 F.2d at 638-39 (reviewing a challenge
to a plea on direct appeal based on ineffective assistance of
counsel); cf. Chizen, 809 F.2d at 562 (reviewing a challenge
to a plea on direct appeal based on claim of “counsel’s mis-
representations as to what his sentence in fact would be”).
The majority’s argument that we cannot consider an ineffec-
tive assistance claim is inconsistent with Signori, which
reviewed the incompetency challenge directly rather then dis-
missing the plea challenge to await a § 2255 motion.7

While asserting that this court does not review ineffective
assistance claims on direct appeal, the majority fails to cite
any case refusing to consider an ineffectiveness issue on
direct appeal in which the issue was litigated in district court
on a plea withdrawal motion (or for any other reason, for that
matter). Every case the majority cites for its central proposi-
tion concerns an ineffectiveness claim involving attorney con-
duct unrelated to any plea withdrawal hearing, or to any other
hearing held before the district court. The cases cited thus
offer little enlightenment regarding an ineffective assistance
claim presented at an evidentiary hearing as part of an effort

an ineffectiveness challenge where there is no possibility of a proper use
of strategic discretion and where the government, as opposing party, could
have sought to disprove Jeronimo’s representations by presenting Kolego
as a witness but did not. If, however, the majority still believes the testi-
mony is necessary, it should have remanded the case back to the district
court for further factfinding, as the question of Kolego’s advice was prop-
erly before the district court on the plea withdrawal motion.
7
The record here is more developed than in Signori as there is sworn
uncontroverted testimony from the defendant, which accounts for my pre-
vious conclusion about the merits of Jeronimo’s claim. Despite this sworn
testimony, the majority goes on, oddly, to decide that because the admitted
evidence is not controverted, the record is less developed and the evidence
is weaker than in a case like Signori, in which the evidence was disputed.
See ante at 2103-05 n.5.
2118 UNITED STATES v. JERONIMO
to withdraw a guilty plea. See United States v. Daychild, 357
F.3d 1082, 1094-95 (9th Cir. 2004) (attorney filed pretrial
motions to continue when client wanted a speedy trial);
United States v. McKenna, 327 F.3d 830, 845 (9th Cir.) (fail-
ure to admit evidence at trial and failure to file motions), cert.
denied, 540 U.S. 941 (2003); Laughlin, 933 F.2d at 788-89
(attorney conduct during a hearing for revocation of proba-
tion); Anderson, 850 F.2d at 565 n.1 (failure to request a par-
ticular jury instruction); United States v. Birges, 723 F.2d
666, 669-70 (9th Cir. 1984) (failure to request witnesses).
Given the unique connection in this case between the ineffec-
tiveness issue and the merits question on appeal, the majori-
ty’s reliance on the court’s general reluctance to address
ineffectiveness claims on direct appeal is entirely out of place.

IV

In sum: The majority refuses to consider the appeal of a
criminal defendant who, in sworn and uncontradicted testi-
mony, made clear that, due to his attorney’s representations,
he never understood the mandatory legal consequences of his
plea agreement. By purporting to enforce the appeal waiver,
the majority refuses to reach an ineffectiveness of counsel
claim that could resolve both the availability of an appeal and
the merits of the appeal, and that was litigated below. Its
refusal is based on cases in which, unlike here, the district
court had no occasion to hold a hearing on the ineffectiveness
claim the defendant wishes to raise on appeal. Those cases
have no application here. The majority’s insistence on enforc-
ing this so-called meeting of the minds strips Jeronimo of the
chance to assert many of the basic rights afforded criminal
defendants in our adversarial system.8
8
The importance of the way we handle plea agreements cannot be
understated. During fiscal year 2002 — the year that Jeronimo both signed
and challenged his plea agreement — the plea agreement was the central
method of conviction in the criminal justice process as 97% of all convic-
tions nationally, 98.3% of all convictions in the Ninth Circuit, and 98.7%
of all convictions in Oregon — the state where Jeronimo was arrested —
were made by plea bargain. See U. S. Sentencing Comm’n, Federal Sen-
tencing Statistics by State, District, and Circuit (2002), http://
www.ussc.gov/JUDPACK/2002/or02.pdf.
 UNITED STATES v. JERONIMO 2119
I respectfully dissent.