United States v. Jose Medina-Carrasco

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 13-10397
Plaintiff-Appellee,
D.C. No.
v. 4:13-cr-00172-
RCC-BGM-1
JOSE MEDINA-CARRASCO, AKA
Josue Medina Carrasco, AKA Jose
Antonio Pereida Lopez, AKA Jose ORDER AND
Pereida-Lopez, AMENDED
Defendant-Appellant. OPINION

Appeal from the United States District Court
for the District of Arizona
Raner C. Collins, Chief District Judge, Presiding

Argued and Submitted
July 6, 2015—San Francisco, California

Filed December 2, 2015
Amended March 2, 2016

Before: Susan P. Graber and Paul J. Watford, Circuit
Judges, and Paul L. Friedman,* District Judge.

Opinion by Judge Graber;
Dissent by Judge Friedman

*
The Honorable Paul L. Friedman, United States District Judge for the
District of Columbia, sitting by designation.
2 UNITED STATES V. MEDINA-CARRASCO

SUMMARY**

Criminal Law

The panel dismissed a sentencing appeal based on a
waiver of appellate rights in the plea agreement, which
precluded a challenge to “any aspect of the defendant’s
sentence—including the manner in which the sentence is
determined and any sentencing guideline determinations.”

The panel rejected the defendant’s contention that the
requirement that he be sentenced “in accordance with” the
plea agreement is ambiguous, and wrote that even if the
phrase were susceptible to more than one interpretation, the
plea colloquy eliminated any ambiguity.

The panel also rejected the defendant’s contention that he
was not sentenced “in accordance with” the plea agreement
because the district court’s “crime of violence” determination
was incorrect. The panel did not reach the merits of the
“crime of violence” question, explaining that because the
defendant expressly waived his right to challenge sentencing
guidelines determinations, a sentence “in accordance with”
the plea agreement need not rest on a correct guidelines
determination.

Judge Friedman dissented because he believes the
appellate waiver language is ambiguous rendering it
unenforceable, and because the district court plainly erred by
applying the crime of violence enhancement.

**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 UNITED STATES V. MEDINA-CARRASCO 3

COUNSEL

Jill E. Thorpe (argued), Tucson, Arizona, for Defendant-
Appellant.

Christina M. Cabanillas (argued), Assistant United States
Attorney, John S. Leonardo, United States Attorney, and
Robert L. Miskell, Appellate Chief, District of Arizona,
Tucson, Arizona, for Plaintiff-Appellee.

ORDER

The opinion and dissent filed December 2, 2015, and
published at 806 F.3d 1205, is amended by the opinion and
dissent filed concurrently with this order, as follows:

At slip opinion page 14, 806 F.3d at 1212, replace
footnote 4 of the dissent with the following:
4
Some critics have also suggested that appeal
waivers cannot be truly voluntary when one
contracting party—the government—has such
a great advantage in bargaining power
because the precise charge or charges to be
brought and the resulting advisory Guideline
sentencing range are totally up to the
prosecutor. It is illusory, they say, to suggest
that the defendant has any real bargaining
power in this context, any free and deliberate
choice.
4 UNITED STATES V. MEDINA-CARRASCO

Judges Graber and Watford have voted to deny
Appellant’s petition for rehearing en banc, and Judge
Friedman has declined to make a recommendation.

The full court has been advised of the petition for
rehearing en banc, and no judge of the court has requested a
vote on it.

Appellant’s petition for rehearing en banc is DENIED.
No further petitions for rehearing or petitions for rehearing en
banc shall be entertained.

OPINION

GRABER, Circuit Judge:

Defendant Jose Medina-Carrasco pleaded guilty to illegal
reentry after deportation. The district court sentenced him to
55 months’ imprisonment, to be followed by 3 years’
supervised release. On appeal, Defendant claims that the
district court erred procedurally by failing to state on the
record the applicable sentencing guidelines range and erred
substantively in calculating the applicable sentencing
guidelines range. But Defendant’s plea agreement contained
a waiver of appellate rights specifically precluding a
challenge to “any aspect of the defendant’s
sentence—including the manner in which the sentence is
determined and any sentencing guideline determinations.”
We hold that Defendant was sentenced according to the plea
agreement and that his waiver of appellate rights is valid and
enforceable. Accordingly, we dismiss the appeal.
 UNITED STATES V. MEDINA-CARRASCO 5

FACTUAL AND PROCEDURAL HISTORY

A federal grand jury indicted Defendant on one count of
illegal reentry after deportation, in violation of 8 U.S.C.
§ 1326(a) as enhanced by § 1326(b)(1). He pleaded guilty
pursuant to a written “fast-track” plea agreement. The
agreement listed 18 different sentencing ranges, reached by
combining three possible offense levels with six possible
criminal history categories. The agreement did not explain
how the applicable offense level would be calculated, except
to cite U.S.S.G. § 2L1.2 and state that “[t]he precise level of
offense and number of months sentence imposed will be
determined by the court based upon the defendant’s criminal
record.” The guidelines ranges varied widely: The lowest
range was 4 to 10 months’ imprisonment, and the highest
range was 70 to 87 months’ imprisonment.

The plea agreement also contained a section titled
“WAIVER OF DEFENSES AND APPEAL RIGHTS,” which
provided:

Provided the defendant receives a
sentence in accordance with this fast-track
plea agreement, the defendant waives (1) any
and all motions, defenses, probable cause
determinations, and objections that the
defendant could assert to the indictment or
information; and (2) any right to file an
appeal, any collateral attack, and any other
writ or motion that challenges the conviction,
an order of restitution or forfeiture, the entry
of judgment against the defendant, or any
aspect of the defendant’s sentence—including
the manner in which the sentence is
6 UNITED STATES V. MEDINA-CARRASCO

determined and any sentencing guideline
determinations—and includes, but not limited
to, any appeals under 18 U.S.C. § 3742
(sentencing appeals), any motions under
28 U.S.C. §§ 2241 and 2255 (habeas
petitions), and any right to file a motion for
modification of sentence, including under
18 U.S.C. § 3582(c). The defendant
acknowledges that this waiver shall result in
the dismissal of any appeal, collateral attack,
or other motion the defendant might file
challenging the conviction, order of restitution
or forfeiture, or sentence in this case. If the
defendant files a notice of appeal or other
challenge to his/her conviction or sentence,
notwithstanding this agreement, the defendant
agrees that this case shall, upon motion of the
government, be remanded to the district court
to determine whether the defendant is in
breach of this agreement and, if so, to permit
the government to withdraw from the plea
agreement.

At the change of plea hearing, Defendant affirmed that he
signed the plea agreement after having it explained to him by
his lawyer, that he understood the terms and conditions of the
plea agreement, and that he agreed to be bound by those
terms and conditions. During the Rule 11 colloquy, Fed. R.
Crim. P. 11, the magistrate judge addressed the wide range of
sentences listed in the agreement:

THE COURT: And Mr. Carrasco, you
and the Government, with the help of Mr.
Flores, have entered into an agreement which,
 UNITED STATES V. MEDINA-CARRASCO 7

depending upon your criminal history and
level of offense, states that you are agreeing
that the district court judge may impose a
prison sentence of between four months in
prison up to 87 months in prison.

Do you understand that?

THE DEFENDANT: Yes, Judge.

THE COURT: And Mr. Carrasco, there’s
a broad range of sentencing possibilities under
the plea agreement, and should the district
court judge accept the plea agreement, the
reason there’s such a broad range, it’ll be up
to the district court judge to determine which
offense level is appropriate for you.

And there are three potential offense
levels, offense level 24, offense level 20,
offense level 12. Then, once the district court
judge determines the appropriate offense
level, then the district court judge will
determine your criminal history [category]
based upon your criminal history, and there’s
different criminal history categories under
each offense level that can go from criminal
history category one up to criminal history
category six.

Do you understand that’s why there’s a
very broad range of sentencing possibilities
under the plea agreement?
8 UNITED STATES V. MEDINA-CARRASCO

THE DEFENDANT: Yes, Judge.

Defendant also affirmed that he understood that he was
giving up his right to appeal or collaterally attack his
conviction and his sentence.

The Presentence Investigation Report (“PSR”) applied the
modified categorical approach to conclude that Defendant’s
prior conviction for aggravated assault was for a “crime of
violence,” triggering a 16-level increase under U.S.S.G.
§ 2L1.2(b)(1)(A)(ii). The PSR applied that increase to the
base offense level of 8 and subtracted 3 levels for acceptance
of responsibility, for a total offense level of 21. After
reviewing Defendant’s criminal history, the PSR concluded
that the appropriate criminal history category was IV. The
resulting range was 57 to 71 months in prison.

In his sentencing memorandum, Defendant requested a
downward departure or variance, arguing that “the 16-level
enhancement substantially overstates the seriousness of the
conviction, and consequently subjects Mr. Medina to an
unduly harsh sentence.” At the sentencing hearing,
Defendant’s lawyer affirmed that, other than the request for
the departure or variance, he had no “objections to the
probation officer’s guideline recommendations and factual
representations in the report.” Later, defense counsel
specifically conceded, referring to Defendant’s aggravated
assault conviction, that “it’s a crime of violence, . . . it’s a
level 24.”

The district court sentenced Defendant to a below-
guidelines 55 months of imprisonment, to be followed by 3
years of supervised release. Defendant timely filed a notice
of appeal. Because Defendant knowingly and voluntarily
 UNITED STATES V. MEDINA-CARRASCO 9

waived his right to challenge “any aspect of [his]
sentence—including . . . any sentencing guideline
determinations,” we dismiss the appeal.

STANDARD OF REVIEW

We review de novo the validity of an appeal waiver.
United States v. Charles, 581 F.3d 927, 931 (9th Cir. 2009).
A waiver of 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. Jeronimo, 398 F.3d 1149,
1153 (9th Cir. 2005), overruled on other grounds by United
States v. Castillo, 496 F.3d 947, 957 (9th Cir. 2007) (en
banc). To discern whether a waiver is knowing and
voluntary, we must ask “what the defendant reasonably
understood to be the terms of the agreement when he pleaded
guilty.” United States v. De la Fuente, 8 F.3d 1333, 1337
(9th Cir. 1993) (footnote omitted).

DISCUSSION

Defendant argues that the waiver is unenforceable for two
related, but distinct, reasons. First, he argues that the
requirement that he be sentenced “in accordance with” the
plea agreement is ambiguous, such that his waiver was not
knowing and voluntary. Second, he contends that he was not
sentenced “in accordance with” the plea agreement because
his aggravated assault conviction was not a conviction for a
crime of violence.

The requirement that Defendant be sentenced “in
accordance with” the plea agreement is not ambiguous. The
phrase “in accordance with” requires only that the ultimate
10 UNITED STATES V. MEDINA-CARRASCO

sentence fall within the broad range authorized by the plea
agreement.1 Defendant agrees that such an interpretation is
plausible, but he argues that the phrase also could be read to
require that any sentence imposed rest on a correct guidelines
calculation.

We cannot accept Defendant’s alternate interpretation for
two reasons. First, Defendant’s reading would render
meaningless the express waiver of the right to challenge “any
sentencing guideline determinations,” contrary to basic
principles of contract interpretation. See United States v.
Cope, 527 F.3d 944, 949–50 (9th Cir. 2008) (“For the most

1
Defendant asserts that the sentencing grid included in the plea
agreement looks like “some esoteric algebraic algorithim.” To the extent
that he is arguing that the grid is so confusing that it undermined his
knowing consent to the plea agreement, we cannot accept that argument.
We do not dispute that the typical person unfamiliar with the intricacies
of the federal sentencing guidelines would be confused by the grid at first.
But, as we have explained, Defendant affirmed that his lawyer had
explained the plea agreement and that Defendant understood its terms and
conditions. Moreover, the magistrate judge explained in general how the
grid worked, and again Defendant said that he understood. Having made
those representations, Defendant cannot now claim that his waiver was not
knowing and voluntary because he did not understand the grid. Cf. United
States v. Harvey, 484 F.3d 453, 458 (7th Cir. 2007) (“He cannot now
claim that he did not understand the charge. If he had genuinely been
confused, he should have said something to the judge during the Rule 11
colloquy, at a time when the government easily could have corrected the
problem.”).

We do not mean to suggest that there are no problems with the grid
used in the plea agreement in this case; we merely hold that it was not so
inherently confusing that Defendant’s consent could not have been
knowing and voluntary. In drafting plea agreements, we encourage the
government to continue to “seek terms that will convey to each of the
parties, and the court, a clear understanding of the rights and obligations
created.” United States v. Enriquez, 42 F.3d 769, 772 (2d Cir. 1994).
 UNITED STATES V. MEDINA-CARRASCO 11

part, we interpret plea agreements using the ordinary rules of
contract interpretation.” (internal quotation marks omitted));
United States v. Schuman, 127 F.3d 815, 817 (9th Cir. 1997)
(per curiam) (rejecting the defendant’s proposed reading of
the plea agreement because “it would render the waiver
meaningless”). Second, to allow an allegedly incorrect
guidelines calculation to render inapplicable a waiver of the
right to appeal sentencing guidelines determinations “would
nullify the waiver based on the very sort of claim it was
intended to waive.” United States v. Smith, 500 F.3d 1206,
1213 (10th Cir. 2007).

Moreover, even if the phrase “in accordance with” the
plea agreement were susceptible to more than one
interpretation, the plea colloquy here eliminated any
ambiguity. Defendant affirmed that he understood that there
was a “broad range” of sentences available under the
agreement and that the district judge could impose a sentence
of between 4 and 87 months’ imprisonment, depending on the
applicable offense level and criminal history category, among
other factors. And, as we have explained, the written plea
agreement specifically waives the right to challenge “any
sentencing guideline determinations.” Together, the written
agreement and the Rule 11 colloquy were sufficient to ensure
(1) that Defendant knew that the judge would be deciding
where Defendant fell within the agreed-upon sentencing grid,
and (2) that Defendant understood he was giving up the right
to challenge that determination.

Defendant’s second contention—that he was not
sentenced “in accordance with” the plea agreement because
the district court’s “crime of violence” determination was
incorrect—is similarly unavailing. We need not reach the
merits of the “crime of violence” question because, regardless
12 UNITED STATES V. MEDINA-CARRASCO

of the correct answer to that question, Defendant was
sentenced “in accordance with” the plea agreement. As we
have explained, because Defendant expressly waived his right
to challenge sentencing guidelines determinations, a sentence
“in accordance with” the plea agreement need not rest on a
correct guidelines determination. Here, the district court
applied the guidelines range recommend by the PSR, to
which Defendant did not object. Further, Defendant’s lawyer
conceded that Defendant’s conviction was for a “crime of
violence” and that the 16-level enhancement applied. And
the below-guidelines sentence ultimately imposed fell within
the range set out in the sentencing grid. Defendant’s sentence
thus was “in accordance with” the plea agreement.

Defendant agreed to waive his right to appeal, along with
a number of other rights, in exchange for a lower sentence.
He received the benefit of that bargain; after subtracting three
offense levels for acceptance of responsibility, the district
court imposed a below-guidelines sentence. That he “did not
realize the strength of his potential appellate claims at the
time that he entered into the plea agreement” does not permit
him to invalidate his knowing and voluntary waiver of
appellate rights. United States v. Nguyen, 235 F.3d 1179,
1184 (9th Cir. 2000), abrogated on other grounds by United
States v. Rahman, 642 F.3d 1257, 1259 (9th Cir. 2011). We
will enforce a valid waiver even if the claims that could have
been made on appeal absent that waiver appear meritorious,
because “[t]he whole point of a waiver . . . is the
relinquishment of claims regardless of their merit.” Id.

DISMISSED.
 UNITED STATES V. MEDINA-CARRASCO 13

FRIEDMAN, District Judge, dissenting:

Defendant Jose Medina-Carrasco entered into a plea
agreement with the government under which he agreed to
waive his appellate rights “provided [he] receives a sentence
in accordance with th[e] . . . plea agreement.” This court
previously has considered this same (or functionally
equivalent) plea agreement language, from the same United
States Attorney’s Office, in eight unpublished opinions.1 In
at least five of those cases, the court held that this caveat is
ambiguous and thus renders the waiver unenforceable absent
sufficient clarification from the district court or magistrate
judge.2 Because I agree that this ambiguous waiver is
unenforceable, and because I also conclude that the district
court plainly erred in applying a “crime of violence”

1
United States v. Salmeron-Ozuna, 597 F. App’x 454 (9th Cir. 2015)
(unpublished); United States v. Hernandez-Lopez, 594 F. App’x 385 (9th
Cir. 2015) (unpublished); United States v. Banos-Mejia, 588 F. App’x 522
(9th Cir. 2014) (unpublished); United States v. Perez-Mancilla, 573 F.
App’x 615 (9th Cir. 2014) (unpublished); United States v. Gonzales-
Garcia, 541 F. App’x 764 (9th Cir. 2013) (unpublished); United States v.
Rodriguez, 540 F. App’x 662 (9th Cir. 2013) (unpublished); United States
v. Baltazar-Neri, 540 F. App’x 630 (9th Cir. 2013) (unpublished); United
States v. Aguilar-Balbuena, 475 F. App’x 222 (9th Cir. 2012)
(unpublished).
2
Banos-Mejia, 588 F. App’x at 523; Perez-Mancilla, 573 F. App’x at
616; Gonzales-Garcia, 541 F. App’x at 765; Rodriguez, 540 F. App’x at
662; Aguilar-Balbuena, 475 F. App’x at 223.

In a sixth case, Salmeron-Ozuna, the court did not specifically hold
that the caveat was ambiguous, but stated that “[w]e are unpersuaded that
the appeal waiver is ambiguous in light of the clarifying colloquy at the
change of plea hearing.” 597 F. App’x at 454 (emphasis added). In only
one of the eight cases, United States v. Hernandez-Lopez, 594 F. App’x
at 385, did the panel adopt the position taken by the majority in this case.
14 UNITED STATES V. MEDINA-CARRASCO

enhancement in calculating Medina-Carrasco’s sentencing
guideline range, I respectfully dissent.

I. APPEAL WAIVERS

I begin by acknowledging that this court and every other
federal court of appeals to have considered the issue have
held that appeal waivers are valid: If a defendant may waive
his constitutional rights as part of a plea agreement, they
reason, it follows that a defendant may waive statutory rights
to appeal and to collaterally attack a conviction or sentence.
See, e.g., United States v. Navarro-Botello, 912 F.2d 318, 321
(9th Cir. 1990); United States v. Wiggins, 905 F.2d 51, 53–54
(4th Cir. 1990). Those decisions have been criticized by trial
judges and commentators on a variety of grounds.3 Primary
among them is the reality that giving up the right to trial, to
confront witnesses at trial, and to preserve the privilege
against self-incrimination are all known trial rights that
necessarily are forfeited by the very act of pleading guilty

3
See, e.g., United States v. Melancon, 972 F.2d 566, 571–73 (5th Cir.
1992) (Judge Parker, concurring specially); United States v. Johnson,
992 F. Supp. 437, 438–40 (D.D.C. 1997) (Judge Harold Greene); United
States v. Raynor, 989 F. Supp. 43, 44–49 (D.D.C. 1997) (Judge
Friedman); United States v. Perez, 46 F. Supp. 2d 59, 64–72 (D. Mass.
1999) (Judge Gertner), abrogated by United States v. Teeter, 257 F.3d 13
(1st Cir. 2001); United States v. Vanderwerff, No. 12-CR-0069, 2012 WL
2514933, at *5 (D. Colo. June 28, 2012) (Judge Kane), rev’d and
remanded, 788 F.3d 1266 (10th Cir. 2015); Robert K. Calhoun, Waiver of
the Right to Appeal, 23 HASTINGS CONST. L.Q. 127 (1995); Alexandra W.
Reimelt, Note, An Unjust Bargain: Plea Bargains and Waiver of the Right
to Appeal, 51 B.C. L. REV. 871 (2010) ; Nancy J. King, Plea Bargains that
Waive Claims of Ineffective Assistance – Waiving Padilla and Frye, 51
DUQ. L. REV. 647 (2013); Andrew Dean, Note, Challenging Appeal
Waivers, 61 BUFF. L. REV. 1191 (2013); Kevin Bennardo, Post-Sentencing
Appellate Waivers, 48 U. MICH. J. L. REFORM. 347 (2015).
 UNITED STATES V. MEDINA-CARRASCO 15

instead of proceeding to trial. The defendant consequently
knows precisely what he or she is giving up in exchange for
the benefits of the guilty plea at the very moment the plea is
entered — a trial and the constitutional rights that accompany
it.

Sentencing, however, does not occur contemporaneously
with the plea and waiver. It is a future event, and the
mistakes from which one might have reason to appeal have
not yet occurred at the time a defendant waives the right to
appeal or collaterally attack the plea or sentencing
proceedings. A defendant cannot know what he or she has
given up by waiving the right to appeal until after the judge
and counsel have reviewed a yet-to-be-prepared presentence
investigation report, after the judge has considered other
information not known to the defendant at the time of the
plea, and after the judge has actually imposed sentence. By
then it is too late, no matter how disproportionate the
sentence or how egregious the procedural or substantive
errors committed by the sentencing judge or the defendant’s
own counsel. It is hard to see how a defendant at the plea
hearing can ever knowingly and intelligently — that is, with
“a full awareness of both the nature of the right[s] being
abandoned and the consequences of the decision to abandon
it,” Moran v. Burbine, 475 U.S. 412, 422 (1986) — waive the
right to appeal or collaterally attack a sentence that has not
yet been imposed. Such prospective waivers in anticipation
of unknown future events are inherently unknowing and
unintelligent.4

4
Some critics have also suggested that appeal waivers cannot be truly
voluntary when one contracting party—the government—has such a great
advantage in bargaining power because the precise charge or charges to
be brought and the resulting advisory Guideline sentencing range are
16 UNITED STATES V. MEDINA-CARRASCO

Putting these concerns aside, the courts of appeals (as
noted) are unanimous in recognizing the presumptive validity
of appeal waivers. Each one of those courts, however, has
done so with the proviso that such waivers must be rigorously
assessed to assure that they have been entered knowingly,
intelligently, and voluntarily. Furthermore, the courts have
made clear that the question is not one of form but of
substance: Did the defendant in fact knowingly, intelligently,
and voluntarily waive the right to appeal or to collaterally
attack a conviction or sentence — a determination which
must be based upon the specific facts and circumstances
presented by the particular case, including the defendant’s
“background, experience, and conduct.” United States v.
Martinez, 143 F.3d 1266, 1269 (9th Cir. 1998) (quoting
Edmonds v. Arizona, 451 U.S. 477, 482 (1981)). And as with
waivers of constitutional rights, “a heavy burden” rests on the
government to demonstrate by a preponderance of the
evidence that the waiver was voluntary and that the defendant
knowingly and intelligently waived these important statutory
rights. See Berghuis v. Thompkins, 560 U.S. 370, 383–84
(2010); United States v. Garibay, 143 F.3d 534, 536–37 (9th
Cir. 1998); see also United States v. Andis, 333 F.3d 886, 890
(8th Cir. 2002).

II. THIS WAIVER IS UNENFORCEABLE

Under this court’s jurisprudence, Medina-Carrasco’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[,]

totally up to the prosecutor. It is illusory, they say, to suggest that the
defendant has any real bargaining power in this context, any free and
deliberate choice.
 UNITED STATES V. MEDINA-CARRASCO 17

[intelligently,] and voluntarily made.” United States v.
Charles, 581 F.3d 927, 931 (9th Cir. 2009) (quoting United
States v. Jeronimo, 398 F.3d 1149, 1154 (9th Cir. 2005),
overruled on other grounds by United States v. Castillo,
496 F.3d 947, 957 (9th Cir. 2007) (en banc)). The court must
“determine what the defendant reasonably understood to be
the terms of the agreement when he pleaded guilty,” United
States v. De la Fuente, 8 F.3d 1333, 1337 (9th Cir. 1993)
(footnote omitted), and then that he voluntarily and
knowingly waived his rights as he understood them, see
Charles, 581 F.3d at 932 (Because defendant “reasonably
could have believed that he retained his right to appeal his
sentence to the extent that the district court determined he
was a career offender,” “[defendant] did not waive his right
to appeal [that] determination.”). “The drafter of the plea
agreement, typically the government, is responsible for any
lack of clarity such that ambiguities are construed in favor of
the defendant.” Charles, 581 F.3d at 931.

Section IV of the plea agreement here states that Medina-
Carrasco waives his right to appeal “provided [he] receives a
sentence in accordance with this fast-track plea agreement.”
As the majority notes, Medina-Carrasco argues that the “in
accordance with” caveat is susceptible to two interpretations.
Slip Op. at 9. First, the waiver is effective so long as Medina-
Carrasco received a sentence in any of the eighteen different
sentencing ranges listed in the sentencing grid contained in
the plea agreement, because that is what he agreed to. This
is the interpretation adopted by the majority. Slip Op. at 9.
Or, second, the waiver is effective so long as Medina-
Carrasco received a sentence based on a properly calculated
sentencing guideline range, id. at 10, that is, so long as it does
not exceed 87 months. The majority rejects this alternative
interpretation as implausible for two reasons: (1) it would
18 UNITED STATES V. MEDINA-CARRASCO

“render meaningless the express waiver of the right to
challenge ‘any sentencing guideline determinations’ contrary
to basic principles of contract interpretation”; and (2) to allow
an allegedly incorrect guidelines calculation to render a
waiver inapplicable “would nullify the waiver based on the
very sort of claim it was intended to waive.” Slip Op.
at 10–11.5

I disagree with the majority’s view that the second,
alternative interpretation is implausible. In my view, both
interpretations posited by Medina-Carrasco are plausible.
And if both are plausible, the waiver is ambiguous. It follows
that Medina-Carrasco did not knowingly and intelligently
waive his right to appeal the district court’s determination of
whether his prior conviction qualified as a “crime of

5
The majority’s rejection of this alternative interpretation as implausible
is troublesome in light of the fact that a panel of this court seemingly held
the exact opposite in United States v. Baltazar-Neri, 540 F. App’x at 631,
an unpublished opinion that counsel were directed to address in their
briefs by this court’s order of June 18, 2014. In Baltazar-Neri, the court
confronted a functionally equivalent caveat requiring the sentence to be
“consistent with” the plea agreement. Id. Like Medina-Carrasco, the
defendant there challenged a 16-level sentencing enhancement for a crime
of violence under the same sentencing guideline at issue here. The
government conceded that the enhancement was incorrectly applied
because the defendant had never been convicted of a crime of violence,
but contended that the defendant had waived his right to appeal
nevertheless. Id. The defendant urged the court to adopt the interpretation
advanced by Medina-Carrasco in this case — that his sentence was not
“consistent with” the plea agreement because the sentencing guideline
range was incorrectly calculated — and the court explicitly did so,
presumably considering it plausible. Id. The court said: “The sixteen-
level enhancement is ‘consistent’ with the plea agreement only if [the
defendant] was previously convicted of burglary of a dwelling,” which he
was not, and “conclude[d] that [the defendant] did not unambiguously
waive his right to appeal.” Id.
 UNITED STATES V. MEDINA-CARRASCO 19

violence” under U.S.S.G. 2L1.2(b)(1)(A)(ii). See Charles,
581 F.3d at 931–32.

As noted, the majority rejects the alternative
interpretation for two reasons. In my opinion, the first reason
is incorrect because the waiver of the right to appeal “any
sentencing guideline determinations” is not “render[ed]
meaningless” under that alternative interpretation. The basic
principles of contract interpretation invoked by the majority
dictate that the contract “must be read as a whole and every
part interpreted with reference to the whole, with preference
given to reasonable interpretations.” Wapato Heritage,
L.L.C. v. United States, 637 F.3d 1033, 1039 (9th Cir. 2011)
(internal quotation omitted). When read together with the
alternative interpretation of the caveat “in accordance with,”
that portion of the waiver means “any correct sentencing
guideline determinations.” Although it would bar fewer
appeals than the government would prefer, the waiver would
be far from meaningless.

As for the majority’s second reason — that this
interpretation counterintuitively allows appeals on claims
that ordinarily would be waived by plea agreement waivers
— I agree. But the fact that the government almost certainly
did not intend to draft a seemingly self-defeating waiver is
irrelevant. Our inquiry must focus on the literal terms of the
plea agreement, a contract drafted by the government, and
what Medina-Carrasco “reasonably understood to be the
terms of the agreement when he pleaded guilty.” De la
Fuente, 8 F.3d at 1337; see also Charles, 581 F.3d at 931;
United States v. Cope, 527 F.3d 944, 950 (9th Cir. 2008)
(“The drafter of the plea agreement — usually the
government . . . — bears responsibility for any lack of clarity,
such that [a]mbiguities are . . . construed in favor of the
20 UNITED STATES V. MEDINA-CARRASCO

defendant, . . . and the government is ordinarily held to the
literal terms of the plea agreement it made.”) (quoting United
States v. Transfiguracion, 442 F.3d 1222, 1228 (9th Cir.
2006)) (internal quotation marks and citations omitted).

Unlike the majority, I therefore find both interpretations
of the “in accordance with language” plausible. And because
Medina-Carrasco could have reasonably understood the
waiver to mean either of the two plausible interpretations or,
frankly, not understood what he was waiving at all, the plea
agreement was ambiguous and his waiver of appellate rights
was not knowing and intelligent. Absent any clarification
from the magistrate judge that eliminated the ambiguity of the
written agreement, the waiver of appellate rights is
unenforceable. See United States v. Clark, 218 F.3d 1092,
1095 (9th Cir. 2000) (“If . . . a term of a plea agreement is not
clear on its face, we look to the facts of the case to determine
what the parties reasonably understood to be the terms of the
agreement. If, after we have examined the extrinsic evidence,
we still find ambiguity regarding what the parties reasonably
understood to be the terms of the agreement, then the
government ‘ordinarily must bear responsibility for any lack
of clarity.’”) (quoting De la Fuente, 8 F.3d at 1338); United
States v. Baramdyka, 95 F.3d 840, 843 (9th Cir. 1996) (“This
court looks into the circumstances surrounding the entry of
the plea agreement to determine whether the defendant agreed
to its terms knowingly and voluntarily.”).

In that regard, I respectfully disagree with the majority’s
conclusion that, even assuming the “in accordance with”
caveat in the plea agreement was ambiguous — and I think
it is — the plea colloquy saves the waiver. Slip Op. at 11.
While the magistrate judge asked Medina-Carrasco a number
of questions regarding the plea agreement and his
 UNITED STATES V. MEDINA-CARRASCO 21

constitutional and statutory rights, only one concerned the
waiver of his right to appeal: “[D]o you understand that,
according to your written plea agreement, you are giving up
your right to appeal your conviction and sentence?” The
magistrate judge, however, did not explain the parameters of
the waiver or the circumstances in which it would apply. He
failed to clear up or even address the ambiguity as to the
meaning of the phrase “in accordance with.” And the
representative of the same United States Attorney’s Office
that had been admonished by this court on several prior
occasions in similar situations, see supra at 1, failed to urge
him to do so.

Moreover, the single question posed by the magistrate
judge provided incorrect information. Even the majority
acknowledges that Medina-Carrasco did not waive every
issue he might appeal from his conviction and sentence — at
a bare minimum, under the majority’s interpretation, he
reserved the right to appeal from a sentence outside the
ranges listed in the agreement. Slip Op. at 9–10. And despite
the unequivocal language of the plea agreement, he preserved
the right to raise on collateral attack a claim of ineffective
assistance of counsel at the plea or sentencing and certain
other constitutional violations that infected either. See
Washington v. Lampert, 422 F.3d 864, 870–71 (9th Cir. 2005)
(holding that plea agreement that waives right to file federal
habeas petition is unenforceable with respect to ineffective
assistance of counsel claim that challenges voluntariness of
waiver); see also United States v. Adams, 780 F.3d 1182,
1183–84 (D.C. Cir. 2015); United States v. Hahn, 359 F.3d
1315, 1327 (10th Cir. 2004); Andis, 333 F.3d at 891. The
plea colloquy therefore failed to eliminate the ambiguity of
the written plea agreement and to clarify that the caveat
meant only that Medina-Carrasco could appeal if the sentence
22 UNITED STATES V. MEDINA-CARRASCO

was outside the broad 4 to 87 months range of imprisonment
in the agreement. In my view, the waiver of appellate rights
is unenforceable, and I would reach the merits of Medina-
Carrasco’s appeal.

There is yet another, separate reason to conclude that
Medina-Carrasco did not understand the consequences of his
plea sufficiently to knowingly and intelligently waive his
right to appeal. Like the majority, I, too, am concerned about
the lack of clarity in the “algebraic algorithm” of the plea
agreement. Slip Op. at 10 n.1. In my view, however, the lack
of clarity is fatal to the validity of the appeal waiver,
independent of the ambiguity addressed above. While
ostensibly labeled a Rule 11(c)(1)(C) plea agreement, the grid
presented in the plea agreement contains a mind-numbing 18
different potential guideline sentencing ranges, reached by
combining three possible offense levels with six possible
criminal history categories, which apparently reflect
reductions for acceptance of responsibility and the fast track
program, without so stating. The plea agreement contains no
explanation as to how the district court would determine
which range or criminal history category would apply. The
potential sentences range from 4 months to 87 months of
imprisonment, depending on what adjustments, offense
characteristics, and prior offenses are counted and whether
Medina-Carrasco was or was not previously convicted of a
crime of violence. The majority states that “the typical
person unfamiliar with the intricacies of the federal
sentencing guidelines would be confused by the grid at first,”
Slip Op. at 10 n.1, but finds comfort in the fact that this
Spanish-speaking defendant affirmed through an interpreter
that his lawyer had explained the plea agreement to him and
that the magistrate judge “explained in general how the grid
worked,” id. In my view, the plea agreement drafted by the
 UNITED STATES V. MEDINA-CARRASCO 23

government is unacceptable — certainly I would never accept
a plea based on this document — and the magistrate judge’s
explanation woefully failed to clarify it. Medina-Carrasco’s
consent therefore could not have been knowing and
intelligent.

III. CRIME OF VIOLENCE: THE DISTRICT COURT PLAINLY
ERRED

The district court concluded that Medina-Carrasco’s prior
aggravated assault conviction in Arizona categorically
qualified as a “crime of violence” under Section
2L1.2(b)(1)(A)(ii) of the Federal Sentencing Guidelines and
therefore applied a 16-level enhancement. The definition of
“crime of violence” includes the crime of aggravated assault
under state law or “any other offense that has as an element
the use, attempted use, or threatened use of physical force”
against another. U.S.S.G. § 2L1.2, cmt. n.l; see United States
v. Marcia-Acosta, 780 F.3d 1244, 1248 (9th Cir. 2015).
Because Medina-Carrasco failed to object to the 16-level
enhancement, this court may only reverse if it finds plain
error.6

6
Although Medina-Carrasco conceded at sentencing that the
enhancement applied, he did not thereby waive his right to challenge the
sentence. There is no evidence that Medina-Carrasco made a tactical
decision not to challenge the probation office’s (incorrect) initial
determination that his prior conviction qualified as a “crime of violence.”
See United States v. Jimenez, 258 F.3d 1120, 1124 (9th Cir. 2001)
(holding that a defendant who conceded that the PSR correctly applied the
Guidelines did not waive his right to challenge his sentence where there
was no evidence that he considered objecting but for “some tactical or
other reason” rejected the idea); see id. at 1124 (court’s legal
determinations “are not immunized from appellate review simply because
a defendant, present at a hearing where that determination is made,
mistakenly agrees with the court.”).
24 UNITED STATES V. MEDINA-CARRASCO

The government and Medina-Carrasco agree that A.R.S.
§ 13-203(A) is divisible under the “modified categorical
approach” announced by the Supreme Court in Taylor v.
United States, 495 U.S. 575 (1990). See also Descamps v.
United States, 133 S. Ct. 2276, 2283–85 (2013). They also
agree that Medina-Carrasco specifically was convicted under
A.R.S. § 13-203(A)(3), a subsection of the statute which
requires “[k]nowingly touching another person with the intent
to injure, insult or provoke such person.” The government,
however, contends that subsection (A)(3) is further divisible,
and that Medina-Carrasco was convicted under the “intent to
injure” provision of that subsection. The government is
wrong.

In this case, the jury would not have been instructed to
decide whether it found Medina-Carrasco guilty of touching
with the intent to injure because that is not a separate
statutory element under subsection (A)(3). See Rendon v.
Holder, 764 F.3d 1077, 1086 (9th Cir. 2014) (“Only when
state law requires that in order to convict the defendant the
jury must unanimously agree that he committed a particular
substantive offense contained within the disjunctively worded
statute are we able to conclude that the statute contains
alternative elements and not alternative means.”) (emphasis
in original). All that would have been required of the jury
was to determine unanimously whether it found that Medina-
Carrasco’s conduct violated subsection (A)(3); some jurors
could have found intent to injure, others intent to insult, and
still others intent to provoke, and still have rendered a
unanimous verdict. Rendon, 764 F.3d at 1085 (“As long as
the defendant’s conduct violates the statute, the jury can
disagree as to how, and a later sentencing court cannot
conclude that the jury in fact agreed on the particular means
of commission.”).
 UNITED STATES V. MEDINA-CARRASCO 25

Under Johnson v. United States, 559 U.S. 133, 138–40
(2010), “touching” does not qualify as “the use, attempted
use, or threatened use of physical force,” and Medina-
Carrasco’s prior conviction under subsection (A)(3) therefore
does not qualify as a “crime of violence” under Section
2L1.2(b)(1)(A)(ii). Accord United States v. Ossana, 638 F.3d
895, 900 (8th Cir. 2011) (holding that a conviction under
A.R.S. § 13-203(A)(3) “would not qualify as a crime of
violence” because “such contact does not qualify as the use
of physical force because it is not violent force”) (citing
Johnson, 559 U.S. at 138–39). Adding 16 additional offense
levels when there was no crime of violence quadrupled
Medina-Carrasco’s sentencing guideline range from 12 to 18
months of imprisonment to 57 to 71 months of imprisonment.
This was plain error.

I therefore would reverse the sentence and remand for
resentencing.