United States v. Castillo

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 05-30401
Plaintiff-Appellee,
v.  D.C. No.
CR-04-02157-FVS
DOMINGO JACOBO CASTILLO,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Washington
Fred L. Van Sickle, Chief District Judge, Presiding

Argued and Submitted En Banc
March 21, 2007—San Francisco, California

Filed July 25, 2007

Before: Mary M. Schroeder, Chief Circuit Judge,
Harry Pregerson, Stephen Reinhardt, Pamela Ann Rymer,
Sidney R. Thomas, Susan P. Graber, Kim McLane Wardlaw,
William A. Fletcher, Raymond C. Fisher, Ronald M. Gould,
Richard A. Paez, Marsha S. Berzon, Jay S. Bybee,
Consuelo M. Callahan, and Milan D. Smith, Jr.,
Circuit Judges.

Opinion by Judge Bybee;
Dissent by Judge Callahan

8995
 UNITED STATES v. CASTILLO 8997

COUNSEL

David M. Porter, Federal Public Defenders, Sacramento, Cali-
fornia, for the defendant-appellant.
8998 UNITED STATES v. CASTILLO
Dawn M. Reynolds, Law Offices of Dawn M. Reynolds, Dal-
las, Oregon, for the defendant-appellant.

Jill Bolton, Office of the United States Attorney, Spokane,
Washington, for the plaintiff-appellee.

OPINION

BYBEE, Circuit Judge:

We granted en banc review in this case to resolve a ques-
tion to which we have given inconsistent answers: Do we
have jurisdiction to hear an appeal when the defendant
entered a guilty plea in which he waived his right to appeal?
Domingo Jacobo Castillo pled guilty to one count of being an
illegal alien in possession of a firearm in violation of 18
U.S.C. § 922(g)(5). Notwithstanding his guilty plea, Jacobo
Castillo appealed his conviction. The government failed to
raise the plea or his plea agreement as a bar to this appeal and
instead responded to Jacobo Castillo’s arguments on the mer-
its. A divided panel dismissed the appeal for lack of jurisdic-
tion. United States v. Jacobo Castillo, 464 F.3d 988 (9th Cir.
2006), reh’g en banc granted, 473 F.3d 1264 (9th Cir. 2007).

Our cases offer two different views of the question whether
we have jurisdiction under these circumstances. In one line of
cases, we have held that “we do not have jurisdiction over the
merits of appeals based upon pre-waiver constitutional
defects,” and “we must dismiss that portion of the appeal.”
United States v. Reyes-Platero, 224 F.3d 1112, 1115 (9th Cir.
2000); see also United States v. Floyd, 108 F.3d 202, 204 (9th
Cir. 1997) (“Unless [the appellant’s] plea conformed with
[Rule 11(a)(2)’s] specific requirements, we have no jurisdic-
tion to hear her appeal.”); United States v. Carrasco, 786 F.2d
1452, 1453-54 (9th Cir. 1986) (“We do not have jurisdiction
to decide [the appellant’s] appeal of the denial of the suppres-
 UNITED STATES v. CASTILLO 8999
sion motion unless she entered a valid conditional plea.”
(footnote omitted)). On the other hand, we have treated plea
agreements as a waiver of the right to appeal that “does not
divest the Court of jurisdiction it otherwise enjoys,” United
States v. Doe, 53 F.3d 1081, 1082 (9th Cir. 1995), because
“the government can waive the waiver,” United States v.
Garcia-Lopez, 309 F.3d 1121, 1122 (9th Cir. 2002); see also
United States v. Lopez-Armenta, 400 F.3d 1173, 1175-77 (9th
Cir.) (discussing the plea bar as waiver), cert. denied, 126
S. Ct. 199 (2005); United States v. Anglin, 215 F.3d 1064,
1066 (9th Cir. 2000) (discussing the appeal bar as a waiver);
United States v. Bolinger, 940 F.2d 478, 480 (9th Cir. 1991)
(noting that a guilty plea functions as “an express waiver of
the right to appeal”); United States v. Lewis, 798 F.2d 1250,
1250 (9th Cir.) (holding that when “the government fail[s] to
raise [the question of waiver] in its brief or at oral argument,
we decline to address it”), amending 787 F.2d 1318 (9th Cir.
1986). We have even blended the two positions. See Reyes-
Platero, 224 F.3d at 1114 (“The government argues that
Reyes-Platero waived these arguments by unconditionally
pleading guilty. The implication of the government’s argu-
ment is that we do not have jurisdiction . . . .”).

We now hold that a valid guilty plea does not deprive the
court of jurisdiction and remand to the panel for further pro-
ceedings.

I

Jacobo Castillo was indicted in November 2004 on a single
count of being a felon in possession of a firearm in violation
of 18 U.S.C. § 922(g)(5). In February 2005, Jacobo Castillo
moved to suppress the firearm found during an earlier search
of his residence in conjunction with an investigation into a
robbery in which he was implicated. Jacobo Castillo sought
to suppress the evidence, arguing that the police failed to
show probable cause that the firearm used in the robbery,
which had occurred six months earlier, would be located in
9000 UNITED STATES v. CASTILLO
the house to be searched. The district court denied the motion,
and Jacobo Castillo entered into a plea agreement.

The plea agreement specified that the government would
not file additional charges against him, would recommend a
two-level downward departure for acceptance of responsibil-
ity, and that the term of imprisonment would run concurrently
with a sentence imposed following a related conviction. In
exchange, Jacobo Castillo agreed to plead guilty and waive
certain rights. The two relevant provisions of the plea agree-
ment are as follows:

Waiver of Constitutional Rights:

The Defendant, DOMINGO JACOBO CASTILLO,
understands that by entering this plea of guilty the
Defendant is knowingly and voluntarily waiving cer-
tain constitutional rights, including:

(a). The right to a jury trial on the charge;

(b). The right to see, hear and question
the witnesses;

(c). The right to remain silent at trial;

(d). The right to testify at trial; and

(e). The right to compel witnesses to tes-
tify.

While the Defendant is waiving certain constitu-
tional rights, the Defendant understands the Defen-
dant retains the right to be assisted through the
sentencing and any direct appeal of conviction and
sentence by an attorney, who will be appointed at no
cost if the Defendant cannot afford to hire an attor-
ney. The Defendant also acknowledges that any pre-
 UNITED STATES v. CASTILLO 9001
trial motions currently pending before the Court are
waived.

Another provision of the plea agreement concerned his appeal
rights:

Appeal Rights:

The Defendant agrees to waive the right to appeal
the sentence if the Court imposes a prison term
within the guideline range of 21-27 months and if
the Court orders said term to run concurrently with
[his previous sentence] with a term of supervised
release of no longer than three (3) years.

Nowhere does the plea agreement refer to a conditional
plea under Federal Rule of Criminal Procedure 11(a)(2) or
identify issues preserved for appeal. At sentencing, the proba-
tion officer recommended a different criminal history score
than the government, which resulted in a proposed Sentencing
Guidelines range of 46 to 57 months. The court accepted the
plea agreement and the criminal history score recommended
by the probation officer and imposed a sentence of 46 months
to run concurrently with the term Jacobo Castillo was serving
for a prior conviction. Upon examining the plea agreement,
the court told Jacobo Castillo, “[Y]ou have the right to appeal
this court’s determinations.”

Jacobo Castillo appealed. Although his sentence exceeded
the prison term specified in the plea agreement, Jacobo Cas-
tillo did not appeal his sentence. Instead, he challenged his
underlying conviction by raising the preindictment delay and
the district court’s refusal to suppress the firearm seized in the
search. Inexplicably, in response to Jacobo Castillo’s opening
brief, the government did not assert Jacobo Castillo’s plea
agreement as a bar to his appeal. Instead, the government
addressed only the merits of Jacobo Castillo’s claims. Over a
dissent, a panel majority held that we had no jurisdiction to
9002 UNITED STATES v. CASTILLO
hear Jacobo Castillo’s claims and dismissed his appeal: “[Ja-
cobo Castillo’s] failure to preserve his appellate rights by
entering a conditional plea pursuant to Rule 11(a)(2) deprives
us of the authority to consider the merits of a claim.” Jacobo
Castillo, 464 F.3d at 989. The dissenting judge acknowledged
that some of our decisions would support the majority’s posi-
tion, but argued that our cases were in conflict. Id. at 992
(Bybee, J., dissenting). We agreed to rehear this case en banc
to resolve this issue and to overrule our inconsistent prece-
dents.

II

[1] We begin with the fundamental proposition that “fed-
eral courts are courts of limited jurisdiction . . . empowered
to hear only those cases that (1) are within the judicial power
of the United States, as defined in the Constitution, and (2)
that have been entrusted to them by a jurisdictional grant by
Congress.” 13 CHARLES ALAN WRIGHT, ARTHUR R. MILLER &
EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE
§ 3522, at 60 (2d ed. 1984) (footnote omitted); see also Ins.
Corp. of Ir. Ltd. v. Compagnie des Bauxites de Guinee, 456
U.S. 694, 701-02 (1982); Owen Equip. & Erection Co. v.
Kroger, 437 U.S. 365, 372-73 (1978). We clearly have consti-
tutional power and statutory authorization to adjudicate this
case. Article III provides that “[t]he judicial Power shall
extend to all Cases, in Law and Equity, arising under this
Constitution [and] the Laws of the United States.” U.S.
CONST. art. III, § 2. Additionally, Congress has affirmatively
authorized district courts to hear criminal cases involving “all
offenses against the laws of the United States.” 18 U.S.C.
§ 3231; see also Lamar v. United States, 240 U.S. 60, 65
(1916) (stating that “nothing can be clearer than that the dis-
trict court . . . has jurisdiction of all crimes cognizable under
the authority of the United States”). Finally, Congress has
conferred jurisdiction on the courts of appeals to hear “ap-
peals from all final decisions of the district courts of the
United States.” 28 U.S.C. § 1291; see, e.g., SEC v. Capital
 UNITED STATES v. CASTILLO 9003
Consultants LLC, 453 F.3d 1166, 1169 (9th Cir. 2006) (per
curiam); United States v. Griffin, 440 F.3d 1138, 1141 (9th
Cir.), cert. denied, 127 S. Ct. 259 (2006). In the absence of
some other provision that would deprive us of appellate juris-
diction, we have both the constitutional power and congres-
sional authorization to hear the instant appeal.

[2] The panel majority thought that Federal Rule of Crimi-
nal Procedure 11 was such a provision. The panel majority
held that Rule 11(a)(2) “deprive[d] us of the authority to con-
sider the merits of [Jacobo Castillo’s] claim,” and that the
deprivation was a “jurisdictional defect” and “not waivable.”
Jacobo Castillo, 464 F.3d at 989. In a series of recent cases,
the Supreme Court has addressed whether court-promulgated
rules can strip the lower courts of jurisdiction. See generally
United States v. Sadler, 480 F.3d 932, 935-37 (9th Cir. 2007).

In United States v. Cotton, 535 U.S. 625, 627-28 (2002),
the defendants were charged with conspiracy to possess and
distribute cocaine, but the superseding indictment failed to
allege the amount of cocaine that would trigger an enhanced
sentence. Following conviction, and without objection, the
court imposed a sentence in excess of the statutory maximum,
in violation of the defendants’ Fifth and Sixth Amendment
rights under Apprendi v. New Jersey, 530 U.S. 466 (2000).
Cotton, 535 U.S. at 628, 634. The Fourth Circuit dismissed,
holding that the sentencing court lacked jurisdiction to sen-
tence the defendants for a crime with which they were not
properly charged. Id. at 629. The Supreme Court reversed in
an unanimous opinion holding that the defect in the indict-
ment did not deprive the court of subject-matter jurisdiction.
Id. at 630-31. The Court described jurisdiction as the “court’s
power to hear a case,” a power that “can never be forfeited or
waived.” Id. at 630. Jurisdiction stands in contrast to proce-
dural rules, such as “the grand jury right[, which] can be
waived.” Id. The Court explained:

[D]efects in an indictment do not deprive a court of
its power to adjudicate a case. In Lamar v. United
9004 UNITED STATES v. CASTILLO
States, 240 U.S. 60 (1916), the Court rejected the
claim that “the court had no jurisdiction because the
indictment does not charge a crime against the
United States.” Id. at 64. Justice Holmes explained
that a district court “has jurisdiction of all crimes
cognizable under the authority of the United States
. . . [and] [t]he objection that the indictment does not
charge a crime against the United States goes only to
the merits of the case.” Id. at 65. Similarly, United
States v. Williams, 341 U.S. 58, 66 (1951), held that
a ruling “that the indictment is defective does not
affect the jurisdiction of the trial court to determine
the case presented by the indictment.”

Id. at 630-31 (omission and alterations in original).

The Court was careful to distinguish between a court’s
jurisdiction—its authority to adjudicate a case—and a court’s
procedures—by which the court prescribes the orderly con-
duct of its business. The former is power set forth by the Con-
stitution and granted by Congress; the latter, by contrast, are
rules promulgated by the courts themselves to aid in the
expeditious disposition of cases and the efficient management
of judicial resources. We often construe these rules as manda-
tory when properly invoked; failure to observe our procedures
may result in cases being decided on something less than a
full consideration of the merits of the claim. We do so out of
the need for uniform treatment of parties and in the interests
of judicial economy, but not because the rules deprive us of
our authority to proceed. Defects in procedural rules may be
waived or forfeited by parties who fail to object properly,1
whereas defects in our subject-matter jurisdiction go to the
inherent power of the court and cannot be waived or forfeited.
1
Waiver is “the intentional relinquishment or abandonment of a known
right,” whereas forfeiture is “the failure to make the timely assertion of
[that] right.” United States v. Olano, 507 U.S. 725, 733 (1993) (internal
quotation marks omitted).
 UNITED STATES v. CASTILLO 9005
After Cotton, in Kontrick v. Ryan, 540 U.S. 443, 456
(2004), the Court held that a federal court’s subject-matter
jurisdiction cannot be expanded based on the parties’ litiga-
tion conduct. Kontrick involved a creditor who filed an
amended complaint objecting to the discharge of the debtors’
debts, but did so after the deadline for filing the amendment
had passed. Id. at 449. After the district court entered sum-
mary judgment for the creditor, the debtor objected, for the
first time on appeal, that the complaint was untimely and that
the court, therefore, lacked jurisdiction to enter summary
judgment. Id. at 451. The Court unanimously held that the
bankruptcy time rule was not jurisdictional, id. at 452, but that
the debtor had forfeited his right to rely on the limit by not
objecting earlier, id. at 458-60. The Court noted that the label
“jurisdictional” has been applied loosely and that

[c]larity would be facilitated if courts and litigants
used the label “jurisdictional” not for claim-
processing rules, but only for prescriptions delineat-
ing the classes of cases (subject-matter jurisdiction)
and the persons (personal jurisdiction) falling within
a court’s adjudicatory authority.

Id. at 455. Applying this distinction, the Court observed that
Federal Rules of Bankruptcy 4004(a), (b), and 9006(b)(3),
which govern the timing for filing a complaint, did not affect
the court’s subject-matter jurisdiction. Id. The Court noted
that “[o]nly Congress may determine a lower federal court’s
subject-matter jurisdiction,” id. at 452, and because the sec-
tions governing the timing of filing complaints were found in
the Bankruptcy Rules—which are promulgated by the Court
—and not in the U.S. Code, the timeliness provisions were
forfeitable claim-processing rules and did not affect subject
matter jurisdiction, id. at 453-54; see also Kroger, 437 U.S.
at 370 (“[I]t is axiomatic that [procedural rules] do not create
or withdraw federal jurisdiction.”).
9006 UNITED STATES v. CASTILLO
[3] The Court reiterated this analysis most recently in Eber-
hart v. United States, 126 S. Ct. 403 (2005) (per curiam).
Eberhart involved Federal Rules of Criminal Procedure 33
and 45(b)(2), which concern the timing for filing new trial
motions. 126 S. Ct. at 405. The defendant had raised grounds
for filing a new trial motion after the prescribed deadline had
passed, but the government failed to object to the defendant’s
actions until the case was heard on appeal. Id. at 404. In
another unanimous opinion, the Supreme Court held that if
the Bankruptcy Rules at issue in Kontrick were “nonjurisdic-
tional claim-processing rules,” nearly identical provisions of
the Federal Rules of Criminal Procedure could not be juris-
dictional. Id. at 405. “[D]istrict courts must observe the clear
limits of the Rules of Criminal Procedure when they are prop-
erly invoked,” the Court reasoned, but “[t]his does not mean
that limits like those in Rule 33 are not forfeitable when they
are not properly invoked.” Id. at 406.2

[4] We recently reached a similar conclusion in determin-
ing that Federal Rule of Appellate Procedure 4(b) is a forfeit-
able, nonjurisdictional claim-processing rule. Sadler, 480 F.3d
at 939-40. In Sadler, we observed that the timing require-
ments for criminal appeals were grounded in the Federal
Rules rather than in statute and that “[p]rocedural rules cre-
ated by the judiciary cannot shrink or expand the scope of
2
The Court’s decision this past Term in Bowles v. Russell, No. 06-5306,
slip op. (June 14, 2007), does not affect this analysis. In Bowles, the
Supreme Court addressed whether a district court could “extend a party’s
time for filing an appeal beyond the period allowed by statute.” Id. at 1.
The Court held that it could not. Distinguishing Kontrick and Eberhart,
the Court explained that “[b]ecause Congress specifically limited the
amount of time by which district courts can extend the notice-of-appeal
period in [28 U.S.C.] § 2107(c), that limitation is more than a simple
claim-processing rule . . . . [W]hen an appeal has not been prosecuted in
the manner directed, within the time limited by the acts of Congress, it
must be dismissed for want of jurisdiction.” Id. at 8 (internal quotation
marks and citation omitted). Statutory time limits are different from court
rules. See id. at 5.
 UNITED STATES v. CASTILLO 9007
federal jurisdiction.” Id. at 936-37 (citing Kontrick, 540 U.S.
at 453). We ultimately dismissed the appeal, however,
because we found that the government had properly raised the
untimeliness argument, and under the rules we were required
to dismiss. Id. at 940-42.

[5] Reading these cases together, we conclude that our pro-
cedural rules do not expand or contract our jurisdiction and
that the action or inaction of parties neither confers jurisdic-
tion nor deprives us of the power to adjudicate a case. In the
colorful words of Judge Sirica: “When it comes to jurisdiction
of the federal courts, truly, to paraphrase the [S]cripture, the
Congress giveth, and the Congress taketh away.” Senate
Select Comm. on Presidential Campaign Activities v. Nixon,
366 F. Supp. 51, 55 & n.6 (D.D.C. 1973). We turn to whether
anything in Rule 11 alters this analysis.

III

[6] In general, a defendant who enters into a plea agree-
ment waives his right to appeal his conviction. Lopez-
Armenta, 400 F.3d at 1175; Reyes-Platero, 224 F.3d at 1115.
Federal Rule of Criminal Procedure 11(a)(2) permits a defen-
dant to “reserv[e] in writing the right to have an appellate
court review an adverse determination of a specified pretrial
motion.” Ordinarily, if an appellant does not follow this pro-
cess, enters an unconditional plea and still raises such issues
on appeal, the government objects and the court dismisses the
appeal. See, e.g., Lopez-Armenta, 400 F.3d at 1175; Reyes-
Platero, 224 F.3d at 1114; United States v. Nunez, 223 F.3d
956, 958-59 (9th Cir. 2000); Floyd, 108 F.3d at 203; United
States v. Cortez, 973 F.2d 764, 766 (9th Cir. 1992). Here,
however, the government failed to object to Jacobo Castillo’s
appeal and now argues that, because we lack subject-matter
jurisdiction, we must dismiss regardless of whether it properly
raised the objection.3
3
We do not decide whether Jacobo Castillo entered into a valid condi-
tional plea pursuant to Rule 11(a).
9008 UNITED STATES v. CASTILLO
[7] Nothing in Rule 11 affects our jurisdiction to hear
Jacobo Castillo’s appeal. As previously discussed, only Con-
gress can confer or divest the lower federal courts of subject-
matter jurisdiction. Our jurisdiction is grounded in Article III
and in the statutes, not in the Federal Rules promulgated by
the Supreme Court under the Rules Enabling Act, 28 U.S.C.
§§ 2071-2077. That Act grants the Court the power “to pre-
scribe general rules of practice and procedure” provided that
“[s]uch rules . . . not abridge, enlarge or modify any substan-
tive right.” 28 U.S.C. § 2072(a), (b). Those rules may not
expand or diminish the jurisdiction conferred by Congress.
See Venner v. Great N. Ry. Co., 209 U.S. 24, 35 (1908) (“The
jurisdiction of the circuit court is prescribed by laws enacted
by Congress in pursuance of the Constitution[,] and this court
by its rules has no power to increase or diminish the jurisdic-
tion thus created.”); Standish v. Gold Creek Mining Co., 92
F.2d 662, 663 (9th Cir. 1937) (“It is fundamental that a rule
of court cannot enlarge or restrict jurisdiction given by a stat-
ute.”).

[8] The boundaries of our subject matter jurisdiction are
found in 18 U.S.C. § 3231 and 28 U.S.C. § 1291. These sec-
tions respectively limit a district court to adjudicating federal
offenses and appellate courts to reviewing “final decisions” of
the district courts. These provisions do not discuss plea agree-
ments or their possible effects on jurisdiction. Similarly, we
find no evidence in Rule 11 itself or even in the advisory
committee’s notes suggesting a statutory basis for the govern-
ment’s contention that the Rule affects in any way the juris-
diction of the court.4 Although it is true that some of the
Federal Rules restate jurisdictional requirements compelled
by the Constitution or statute, see, e.g., FED. R. CRIM. P. 18
4
Sections 3731 and 3742 of Title 18, which govern criminal appeals by
the United States and the appeal of sentences, are also silent about the
courts’ jurisdiction over convictions obtained through a plea agreement.
Additionally, 18 U.S.C. § 3438, which governs pleas, simply refers the
reader to the Federal Rules of Criminal Procedure.
 UNITED STATES v. CASTILLO 9009
(restating the requirements of Article III, section 2 and the
Sixth Amendment that the government prosecute a crime in
the district in which the offense was committed); FED. R. APP.
P. 4(a)(1)(A) (restating 28 U.S.C. § 2107(a)’s 30-day limit on
filing notices of appeal), any jurisdictional requirements
found in those rules exist by virtue of the Constitution and
statutes, not the rules themselves. Neither Rule 11(a)(2) nor
the advisory committee’s notes make any mention of a statu-
tory or constitutional jurisdictional requirement. The only
apparent jurisdictional requirement is that we review the
“final decision” of the district court, and it is uncontroversial
that an accepted plea agreement is a “final decision” review-
able by an appellate court.5 See Corey v. United States, 375
U.S. 169, 174 (1963) (“Final judgment in a criminal case . . .
means sentence. The sentence is the judgment.” (internal quo-
tations omitted)); United States v. Moskow, 588 F.2d 882, 889
(3d Cir. 1978) (“A judgment of sentence is a final order
whether the sentence is imposed after a jury verdict or after
the entry of a guilty plea.”); see also Collier v. Bayer, 408
F.3d 1279, 1290 (9th Cir. 2005), cert. denied, 126 S. Ct. 1463
(2006).

The panel majority relied on Tollett v. Henderson, 411 U.S.
258 (1973), and Menna v. New York, 423 U.S. 61 (1975) (per
curiam), to support its assertion that, absent compliance with
Rule 11(a)(2), the entry of a guilty plea is a jurisdictional bar
to the review of most antecedent constitutional violations.
Jacobo Castillo, 464 F.3d at 989-90. We do not read these
cases to limit our jurisdiction. Tollett involved a habeas claim
from a state prisoner seeking relief on the ground that
African-Americans had been systematically excluded from
the grand jury that had indicted him. 411 U.S. at 259. The
panel majority cited Tollett for the proposition that entry of
5
Section 2072(c) of Title 28 provides that the rules of procedure “may
define when a ruling of a district court is final for purposes of appeal
under section 1291.” As discussed in the text, there is no question that a
judgment entered following a plea is a final judgment.
9010 UNITED STATES v. CASTILLO
“ ‘a guilty plea represents a break of the chain of events which
has preceded it in the criminal process. . . . [After entering a
guilty plea, a defendant] may not thereafter raise independent
claims relating to the deprivation of constitutional rights that
occurred prior to the entry of the guilty plea.’ ” Jacobo Cas-
tillo, 464 F.3d 989 (quoting 411 U.S. at 267). Similarly, in
Menna, the Court held that “[w]here the State is precluded by
the United States Constitution from haling a defendant into
court on a charge, federal law requires that a conviction on
that charge be set aside even if the conviction was entered
pursuant to a counseled plea of guilty.” 423 U.S. at 62. The
Court clarified that the entry of a guilty plea “simply renders
irrelevant those constitutional violations not logically incon-
sistent 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 63 n.2. In our view, these cases address the
preclusive effect to be given the plea agreement, not the juris-
diction of the court.

[9] At least four other circuits have recently addressed
whether a plea or plea agreement affects our appellate juris-
diction. All have concluded that it does not.6 In United States
v. Hahn, 359 F.3d 1315, 1322 (10th Cir. 2004) (en banc) (per
curiam), the Tenth Circuit rejected the government’s argu-
ment “that the entry of an enforceable appellate waiver ren-
ders [the] case moot, thus leaving [the court] without the
requisite case or controversy necessary for subject matter
jurisdiction under Article III of the Federal Constitution.” The
en banc court reasoned that “[r]egardless of the phrase
6
The panel majority cited United States v. Rogers, 387 F.3d 925 (7th
Cir. 2004), for the proposition that an “unconditional plea created a non-
waivable jurisdictional bar to appellate review.” Jacobo Castillo, 464 F.3d
at 990. We do not read Rogers as standing for this proposition. Rather,
Rogers holds that “a defendant’s failure to preserve a pre-trial motion for
review under Rule 11(a)(2) constitutes a waiver of the issue.” 387 F.3d at
933 (emphasis added); see also id. (holding that because the defendant
entered into an unconditional plea, he “waived his right to have [the] court
review his Fourth Amendment claim”).
 UNITED STATES v. CASTILLO 9011
employed, [the] case is not moot because we have the power
to grant a legally cognizable remedy requested by a party—
namely, voiding the plea agreement.” Id. at 1323. The court
held that it had “both statutory and constitutional subject mat-
ter jurisdiction over appeals when a criminal defendant has
waived his appellate rights in an enforceable plea agreement.”
Id. at 1324. It had constitutional authority under Article III
because the availability of even a partial remedy “ ‘is suffi-
cient to prevent a case from being moot,’ ” id. at 1323 (quot-
ing Calderon v. Moore, 518 U.S. 149, 150 (1996) (per
curiam)), and the district court’s entry of a sentence “consti-
tutes a final order, thereby establishing subject matter juris-
diction under 28 U.S.C. § 1291,” id. at 1320.7

In United States v. Caruthers, 458 F.3d 459, 471-72 (6th
Cir.), cert. denied, 127 S. Ct. 452 (2006), the Sixth Circuit
considered whether the defendant’s guilty plea, which
included an appellate waiver, left the court without jurisdic-
tion to hear the appeal. Although resolving the case on differ-
ent grounds, the Sixth Circuit approvingly cited the Tenth
Circuit’s opinion in Hahn as having “articulated powerful rea-
sons for concluding that even when defendants validly waive
their appeals, the courts of appeal do indeed have jurisdiction
under both the relevant statutes (28 U.S.C. § 1291 and 18
U.S.C. § 3742(a)(1)) and Article III.” Id. at 473 n.6.

The Fifth Circuit took the same approach in United States
v. Story, 439 F.3d 226, 230-31 (5th Cir. 2006), holding that
an appellate waiver in a plea agreement does not deprive the
appeals court of jurisdiction. In a situation similar to the case
7
The dissent would find that Jacobo Castillo’s plea mooted his appeal,
yet our colleague concedes that we have jurisdiction to determine whether
Jacobo Castillo’s plea was entered into knowingly and voluntarily,
whether he entered a conditional plea under Rule 11(a)(2) and to decide
any claims preserved by the conditional plea. Dissenting Op. at 9018 n.1.
If we have jurisdiction to determine these questions, it is not clear why,
under the dissent’s analysis, we lack jurisdiction to determine the preclu-
sive effect of the waiver.
9012 UNITED STATES v. CASTILLO
before us, the government failed to enforce the appellate
waiver in the defendant’s plea agreement by not raising the
issue in any of its appellate briefs. Id. at 231. The Fifth Circuit
held that it had jurisdiction to hear the appeal because “[t]he
district court’s entry of [the defendant’s] sentence is a final
decision and § 1291 confers subject matter jurisdiction upon
[the appeals courts].” Id. The appeal waiver did not strip the
court of jurisdiction because “plea agreements are construed
under the principles of contract law” and “[a] party may
waive a contract provision that is beneficial to it.” Id. The
appellate waiver clearly benefits the government, and “is
enforceable to the extent that the government invokes the
waiver provision . . . . In the absence of the government’s
objection to [the defendant’s] appeal based on his appeal
waiver, the waiver is not binding because the government has
waived the issue.” Id. The Fifth Circuit then proceeded to the
merits of the appeal. Id.

Finally, in United States v. Gwinnett, 483 F.3d 200, 201 (3d
Cir. 2007), a defendant entered into a plea agreement in which
she waived her right to appeal. The Third Circuit concluded
that, despite the plea, it

retains subject matter jurisdiction over the appeal by
a defendant who has signed an appellate waiver. It
could not be otherwise. After all, a sentence based
on constitutionally impermissible criteria, such as
race, or a sentence in excess of the statutory maxi-
mum sentence for the defendant’s crime, can be
challenged on appeal even if the defendant executed
a blanket waiver of his appeal rights. It follows that
we have subject matter jurisdiction over [such a
defendant’s] appeal notwithstanding her waiver of
appeal. Nonetheless, we will not exercise that juris-
diction to review the merits of [a defendant’s] appeal
if we conclude that she knowingly and voluntarily
waived her right to appeal unless the result would
work a miscarriage of justice.
 UNITED STATES v. CASTILLO 9013
Id. at 203 (citation and internal quotation marks omitted).

[10] We agree with our sister circuits. Regardless of
whether a defendant enters into a conditional plea or an
unconditional plea, we retain jurisdiction to hear the appeal.
The preclusive effect we give to the plea agreement may
depend on the nature of the plea and the circumstances in
which it is brought to our attention, issues on which we do not
express an opinion here.

IV

[11] We have jurisdiction to adjudicate this appeal. To the
extent our prior decisions suggest otherwise, they are over-
ruled. We express no opinion on the merits of Jacobo Castil-
lo’s claims, including whether he entered into a valid
conditional plea under Rule 11(a)(2) or an intelligent and
knowing unconditional plea. We vacate the panel’s opinion,
reported at 464 F.3d 988, and remand the case to the panel for
further proceedings consistent with this opinion.

VACATED AND REMANDED to the three-judge panel.

CALLAHAN, Circuit Judge, dissenting:

I

The precise issue in this case is whether this court has juris-
diction over pre-plea constitutional claims following a convic-
tion pursuant to an unconditional guilty plea. The answer is
no. By entering an unconditional guilty plea whereby a defen-
dant 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
9014 UNITED STATES v. CASTILLO
Arrow Honor Soc’y v. Heckler, 464 U.S. 67, 70 (1983); Liner
v. Jafco, Inc., 375 U.S. 301, 306 n.3 (1963) (“Our lack of
jurisdiction to review moot cases derives from the require-
ment of Article III of the Constitution under which the exer-
cise 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 mer-
its.” (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 (1973), and Menna v. New York, 423 U.S. 61 (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. He sought federal
habeas relief on the grounds that African Americans “were
systematically excluded from . . . grand jury” service. Id. at
260. The Sixth Circuit focused on “whether respondent’s fail-
ure 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. The Supreme Court granted the warden’s petition for
a writ of certiorari, framing the issue as “whether a state pris-
oner, 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.

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. The Court reasoned
that:
 UNITED STATES v. CASTILLO 9015
[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 (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 “waiv-
er,” 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 dis-
crimination in the selection of the grand jury.

Id. at 266. Tollett makes clear that a guilty plea “forecloses
independent inquiry” into “claimed antecedent constitutional
violations,” not by virtue of a waiver, but because an uncondi-
tional guilty plea breaks the chain of events in a criminal pro-
ceeding. The unconditional guilty plea moots any claims of
pre-plea constitutional violations that do not affect the volun-
tary 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 “waiv-
er,” but removes guilt issues from the case. 423 U.S. at 62 n.2.
Menna involved a defendant who pleaded guilty to charges
after the state court denied his motion to dismiss for violation
of the Double Jeopardy Clause. Id. at 61. The state appellate
9016 UNITED STATES v. CASTILLO
court affirmed the conviction, declining to address the defen-
dant’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 constitu-
tional 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 val-
idly established.

Id. at 62 n.2 (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 con-
vict petitioner no matter how validly his factual guilt is estab-
lished.” Id. Menna demonstrates that the guilty plea—by
removing the issue of factual guilt from the case and render-
ing 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 clari-
fied 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 (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 rea-
soned that “a voluntary and intelligent plea of guilty made by
an accused person, who has been advised by competent coun-
 UNITED STATES v. CASTILLO 9017
sel, 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. 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. Therefore, the defendant could not then challenge his
conviction by alleging that the withdrawn offer violated due
process. Id. at 510-11.

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. Pro-
sise, 462 U.S. 306, 321 (1983) (“[W]hen a defendant is con-
victed 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 improp-
erly seized.”). Because the seizure of evidence does not impli-
cate 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 vio-
lated his due process rights. However, this court has held that
the accused’s right to a speedy trial “is to 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 establish-
9018 UNITED STATES v. CASTILLO
ment of factual guilt” described by Menna, Jacobo Castillo
also “rendered irrelevant” this claim by entering an uncondi-
tional 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

III

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 sup-
press 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, describ-
ing unconditional guilty plea as a waiver).
1
I recognize that we have jurisdiction to determine whether Jacobo Cas-
tillo’s guilty plea was entered knowingly and voluntarily, and that the rem-
edy for an unknowing or involuntary plea would be withdrawal of the
plea. See Machibroda v. United States, 368 U.S. 487, 492 (1962). I also
recognize that we have jurisdiction to determine whether Jacobo Castillo
entered a conditional guilty plea pursuant to Federal Rule of Criminal Pro-
cedure 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).
 UNITED STATES v. CASTILLO 9019
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 pertain-
ing 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 convic-
tion because the validity of the conviction rests on the volun-
tary admission of guilt, not on any pre-plea governmental
conduct. See Prosise, 462 U.S. at 319, 321 (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 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. 563, 573 (1989)
(explaining that a valid guilty plea does not involve the con-
scious waiver of potential defenses).

The en banc majority distinguishes Tollett and Menna as
“address[ing] the preclusive effect to be given the plea agree-
ment,” 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. 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
2
The Seventh Circuit has suffered from the same problem, incorrectly
using the term “waiver” to describe the effect of a defendant’s uncondi-
tional guilty plea on its appellate jurisdiction. See United States v. Rogers,
387 F.3d 925 (7th Cir. 2004).
9020 UNITED STATES v. CASTILLO
guilty plea deprives this court of jurisdiction to consider ante-
cedent errors “not logically inconsistent with the establish-
ment 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.

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 prop-
erly 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 uncondi-
tional 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 (overturning conviction because the defen-
dant’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 under-
mine 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
 UNITED STATES v. CASTILLO 9021
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 Cas-
tillo entered a knowing and voluntary plea, and whether he
entered 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.
3
The defendant in Caruthers was also able to challenge the denial of his
suppression motion because he entered a conditional plea under Rule 11.
9022 UNITED STATES v. CASTILLO
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 vol-
untary nature of his plea by failing to raise this argument in
his opening or supplemental opening brief. See Bazuayne v.
INS, 79 F.3d 118, 120 (9th Cir. 1995) (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 Cas-
tillo failed to preserve his claims through a Rule 11(a)(2) con-
ditional 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.