In the
United States Court of Appeals
For the Seventh Circuit
No. 11-2412
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
H IPOLITO A LCALA,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 08-CR-00190—Rudolph T. Randa, Judge.
A RGUED A PRIL 4, 2012—D ECIDED M AY 3, 2012
Before E ASTERBROOK, Chief Judge, and F LAUM and
M ANION, Circuit Judges.
F LAUM, Circuit Judge. Hipolito Alcala pled guilty to a
single count of unlawfully using a communication
facility to further a drug trafficking offense. After the
district court accepted his plea, but before sentencing,
he moved to withdraw his plea. Despite the fact that, in
his plea agreement, he waived his right to appeal his
conviction, he now attempts to appeal the district court’s
2 No. 11-2412
denial of his motion to withdraw his plea. He argues
that he did not knowingly and voluntarily waive his
right to appeal, stressing his background as a native
Spanish-speaker with an eighth grade education. We
dismiss the appeal.
I. Background
Hipolito Alcala (“Alcala”) was charged with con-
spiracy to possess with the intent to distribute five
kilograms or more of cocaine, 21 U.S.C. § 841(a)(1); fifty
grams or more of cocaine base, 21 U.S.C. § 841(b)(1)(A);
and one kilogram or more of heroin, 21 U.S.C. § 846.
Initially, Alcala pled not guilty, and a two-day jury trial
commenced on August 16 and 17, 2010. After several
Government witnesses testified against him, Alcala
informed the court that he intended to plead guilty. He
and the Government agreed that he would plead to a
reduced charge of unlawful use of a communication
facility to further a drug trafficking offense, 21 U.S.C.
§§ 841(a)(1), 843(b).
On August 17, 2010, the Government filed an Informa-
tion charging Alcala with the reduced charge. Alcala
pled guilty to this offense, signing a Waiver of Indict-
ment. His plea agreement contained the following provi-
sion:
Based on the government’s concessions in this agree-
ment, the defendant knowingly and voluntarily
waives his right to appeal his sentence in this case
and further waives his right to challenge his convic-
No. 11-2412 3
tion or sentence in any post-conviction proceeding,
including but not limited to a motion pursuant to
28 U.S.C. § 2255. This waiver does not extend to an
appeal or post-conviction motion based on (1) any
punishment in excess of the statutory maximum,
(2) the sentencing court’s reliance on any constitu-
tionally impermissible factor, and (3) ineffective
assistance of counsel.
The same day, Alcala appeared before the district
court, which conducted his plea colloquy. During the
plea colloquy, the district court asked Alcala about
the extent of his education, whether he had ever
been declared mentally incompetent or institutionalized,
whether he was undergoing psychological or psychiatric
care at the time, and whether he was using any medica-
tions or any type of drug that would affect his compre-
hension of the proceedings. Alcala answered that he
had completed “eight years” in school and “no” to the
other questions. The district court asked him whether
he had any questions either for counsel or for the court
about the pleading process or the plea itself, and Alcala
answered negatively. The district court also asked him
whether he was satisfied with his counsel’s representation
thus far, and Alcala responded affirmatively. Finally,
the district court stated:
How do you plead to the charge? That is, Count 1
of this Information? Guilty or not guilty? But, before
you answer, there is one other thing that’s been
waived here that I haven’t discussed, and that’s Para-
graph 32. It says here that you knowingly and volun-
4 No. 11-2412
tarily waive your right to appeal the sentence and
your right to challenge this conviction in any
post-conviction proceeding, including but not
limited to a motion pursuant to 2255 of Section 28 of
the United States Code. But that this waiver does not
extend to an appeal or post-conviction motion
based on any punishment in excess of the statutory
maximum, or if I rely upon any factor that’s not
permitted by the Constitution. Or, if in any way,
Mr. Erickson is ineffective in representing you. Do
you understand that that’s waived when you plead
guilty, Mr. Alcala?
Alcala answered “Yes.” The district court, therefore,
accepted his plea.
On August 24, 2010, Alcala filed a letter with the
district court, ostensibly without the assistance of
counsel, requesting to withdraw his guilty plea and be
tried by jury. His attorney moved to withdraw as
counsel, at which time the district court appointed
new counsel.
On December 2, 2010, Alcala filed a motion to
withdraw his plea with supporting affidavit. The
district court denied his motion and imposed a 34-month
sentence, which amounted to time served, as well as
one year of supervised release and a $100 special assess-
ment.
Alcala appeals, contending that he did not knowingly
and voluntarily waive his right to appeal and that
the district court erred in denying his motion to
withdraw his plea. Because we find that Alcala’s waiver
No. 11-2412 5
was valid and encompassed his right to appeal the
district court’s denial of his motion to withdraw
his plea, our review is foreclosed, and we dismiss
this appeal.
II. Discussion
We review a district court’s denial of a motion to with-
draw a plea for abuse of discretion. United States v. Bryant,
557 F.3d 489, 495 (7th Cir. 2009). When, however, the
plea agreement contains a provision in which the defen-
dant waives his right to appeal, our review is foreclosed
if (1) his attempt to withdraw his plea falls within the
scope of the waiver, see United States v. Shah, 665 F.3d
827, 837 (7th Cir. 2011) (“[W]e enforce a waiver only if
the disputed appeal comes within the ambit of the
waiver.”), and (2) his waiver was valid, see United States v.
Cole, 569 F.3d 774, 776 (7th Cir. 2009) (“As a general
rule, a defendant may waive the right to appeal his con-
viction and sentence, and appeal waivers are generally
valid if they are made knowingly and voluntarily.”)
(internal citations omitted); see also United States v.
McGraw, 571 F.3d 624, 630 (7th Cir. 2009) (“A knowing
and voluntary appeal waiver precludes appellate review.”).
We review de novo whether a waiver is enforceable.
See United States v. Quintero, 618 F.3d 746, 750 (7th
Cir. 2010). In doing so, we interpret the terms of a plea
agreement “according to the parties’ reasonable expecta-
tions and construe any ambiguities in the light most
favorable to the defendant.” Shah, 665 F.3d at 837 (citing
6 No. 11-2412
Quintero, 618 F.3d at 750). Additionally, we consider the
plea colloquy, evaluating whether the district court
“properly informed the defendant that the waiver may
bar the right to appeal.” Id. (citing Quintero, 618 F.3d
at 750).
A. Alcala’s Motion to Withdraw His Plea Agreement
Falls Within the Scope of His Appellate Waiver
This Court has repeatedly recognized that a defendant
may waive his right to appeal his conviction and sen-
tence. See, e.g., Cole, 569 F.3d at 776. We have not yet
considered, however, whether an appeal of a denial of
a motion to withdraw a plea constitutes an appeal of the
conviction. That is, we have not addressed whether a
defendant’s waiver of his appellate rights applies to
a motion to withdraw a plea.
The Sixth Circuit recently confronted this question
in United States v. Toth, 668 F.3d 374 (6th Cir. 2012), and
held that such waiver, if valid, precludes a defendant’s
right to appeal a denial of his motion to withdraw his
plea. In Toth, the defendant signed a plea agreement
with the Government in which he waived his right to
appeal. Id. at 374. The terms of the agreement were speci-
fied to the district court during the defendant’s plea
colloquy, including the defendant’s knowing, voluntary
relinquishment of his appellate rights. Id. at 376-77. The
district court, in turn, instructed the defendant that if
he accepted the deal, he would not be able to withdraw
his guilty plea “absent a fair and just reason.” Id. at 377.
No. 11-2412 7
The defendant indicated that he understood and
accepted the deal. Id.
Some two-and-a-half months later, the defendant in-
formed the court that he had been “tricked” by counsel
into pleading guilty in spite of the truth. Id. The
district court conducted an evidentiary hearing, con-
cluded that the defendant had not demonstrated a
“fair and just reason for requesting the withdrawal,” see
F ED. R. C RIM. P. 11(d)(2)(B), and denied his motion to
withdraw his plea. Toth, 668 F.3d at 377. The defendant
appealed, and the Sixth Circuit, holding that the defen-
dant’s waiver of appeal was valid and that his motion to
withdraw his plea fell within the ambit of the waiver,
dismissed his appeal. Id. at 377-79.
In Toth, the Sixth Circuit echoed the conclusion
reached by every circuit that has considered this ques-
tion: the majority of circuits agree that appealing a
denial of a motion to withdraw a plea “is an attempt to
contest a conviction on appeal.” Id. at 378 (quoting
United States v. Elliott, 264 F.3d 1171, 1174 (10th Cir.
2001)) (internal quotation marks omitted). In addition
to the Sixth Circuit, the Second, Third, Fourth, Eighth,
Ninth, and Tenth Circuits have each held that when a
defendant waives his right to appeal in a plea, he
also waives his right to appeal a denial of his motion
to withdraw that plea.1
1
See United States v. Hernandez, 242 F.3d 110, 113 (2d Cir. 2001)
(per curiam) (identifying an appeal of a denial of a motion to
(continued...)
8 No. 11-2412
We agree with our sister circuits that a defendant
challenges his conviction when he challenges the
district court’s denial of his motion to withdraw a plea.
Accordingly, the only question before us is whether
Alcala’s signing of his plea agreement and waiver of
his rights was knowing and voluntary.
B. Alcala’s Waiver Was Valid
Alcala argues that as a native Spanish-speaker with
an eighth grade education, he could not understand
the appellate waiver provision. He also faults his plea
colloquy proceedings. He claims, first, that the district
1
(...continued)
withdraw a plea as “an issue related to the merits of the under-
lying conviction”); United States v. Daniels, 278 Fed. Appx. 161,
162 (3d Cir. 2008) (“[A]n appeal of a denial of a motion to
withdraw a guilty plea constitutes a challenge to a defendant’s
conviction that falls within the plain language of an appellate
waiver provision.”); United States v. Garner, 283 Fed. Appx. 176,
178 (4th Cir. 2008) (“In challenging the district court’s denial
of his motion to withdraw his guilty plea, [the defendant]
is contesting his conviction.”); United States v. Gray, 528 F.3d
1099, 1102 (8th Cir. 2008) (holding that a knowing, voluntary
waiver of a right to appeal issues relating to the “negotiation,
taking[,] or acceptance of [a] guilty plea or the factual basis
for the plea” precludes appellate review of a denial to
withdraw the plea); United States v. Michlin, 34 F.3d 896, 898,
901 (9th Cir. 1994) (holding that a defendant’s valid waiver
of his appellate rights forecloses his right to appeal a denial of
his motion to withdraw his plea); Elliott, 264 F.3d at 1174.
No. 11-2412 9
court failed to ask him about each trial right individu-
ally—“the right . . . to confront and cross-examine
adverse witnesses, to be protected from compelled
self-incrimination, to testify and present evidence, and
to compel the attendance of witnesses.” Second, he main-
tains that court prompted him for “yes or no” answers
that, in absence of a narrative, rendered it unable to
assess his understanding and competence. In turn, he
argues, he could not have knowingly and voluntarily
agreed to relinquish his right to appeal, and the waiver
is invalid and unenforceable. Although he does not
state so specifically, his claim of invalid waiver extends
to his waiver’s scope: if he could not understand the
provision at all, he could not have understood that his
appeal of a motion to withdraw a plea constituted
an appeal of his conviction. In short, he did not
knowingly, voluntarily give up his right to appeal the
district court’s judgment on that particular matter.
We disagree.
Waiver of the right to appeal is valid when a
defendant knowingly and voluntarily relinquishes his
right. See Shah, 665 F.3d at 837. In assessing the
knowing and voluntary character of a defendant’s
waiver, the court should lend particular credence to
the defendant’s representations to the court during his
plea colloquy, during which he is obligated to tell the
truth. See Koons v. United States, 639 F.3d 348, 352 (7th
Cir. 2011); Hutchings v. United States, 618 F.3d 693, 699
(7th Cir. 2010). His waiver is knowing and voluntary if
he “understand[s] the choice confronting him and . . .
understand[s] that choice is his to make.” United States
10 No. 11-2412
ex rel. Williams v. DeRobertis, 715 F.2d 1174, 1182-83 (7th
Cir. 1983) (discussing waiver of the right to trial by
jury); see also United States v. Johnson, 534 F.3d 690 (7th
Cir. 2008) (“[W]aiver is likely knowing and voluntary if
the defendant gave it for strategic reasons . . . .”). The
court may also consider the fact that the defendant was
represented by counsel, which, barring an ineffective
assistance claim, supports a conclusion that the defen-
dant’s waiver was informed and strategic. See DeRobertis,
714 F.2d at 1182 (“The purpose of the constitutional
guaranty of a right to counsel is to protect an accused
from conviction resulting from his own ignorance of
his legal and constitutional rights.” (quoting Johnson
v. Zerbst, 304 U.S. 458, 465 (1938)) (internal omissions
omitted)).
Alcala’s alleged language difficulties and level of edu-
cation might be troubling if he represented himself
pro se or if he alleged ineffective assistance of counsel.
He did not do so, however, and he makes no such charge
against his original trial counsel. These elements of his
background, of which the district court was aware
during his plea colloquy, do not defeat our presumption
that his responses to the court’s inquiries were truthful,
see Koons, 639 F.3d at 352; Bridgeman v. United States,
229 F.3d 589, 592 (7th Cir. 2000). Nor does the fact that
Alcala’s responses were largely “yes” or “no,” without
more, defeat this presumption. See United States v.
Messino, 55 F.3d 1241, 1253-54 (7th Cir. 1995) (holding
that the defendant was not deprived of meaningful
plea colloquy because he was asked only questions re-
quiring “yes” or “no” answers). While we stress that
No. 11-2412 11
narrative responses in a plea colloquy are superior to
inquiries from the court that elicit “yes” or “no” answers,
see, e.g., United States v. Groll, 992 F.2d 755, 760 n.7 (7th
Cir. 1993) (“[S]imple affirmative or negative answers to
the court’s rote interrogatories give us pause in
finding that [the defendant] entered her plea know-
ingly.”); United States v. Fountain, 777 F.2d 351, 356 (7th
Cir. 1985) (“Simple affirmative or negative answers or
responses which merely mimic the indictment or the
plea agreement cannot fully elucidate the defendant’s
state of mind as required by Rule 11.”), our review of
the plea colloquy, the fact that Alacala was represented
by counsel, and the fact that Alcala was provided with
a translator during the colloquy evince that he compre-
hended the district court’s inquiries.
We similarly find unpersuasive Alcala’s contention
that he could not waive his right to a trial and appeal
until the district court and his attorney had appraised
him of each and every element of a trial. During the
colloquy, the district court informed him that, by
pleading guilty, he would be giving up his right to a
jury trial, including calling witnesses, further presenting
his case, and submitting his case to the jury for a deter-
mination of his guilt or innocence. He understood that
he could choose between being judged by a group of his
peers or pleading to the crime and accepting the Gov-
ernment’s support and sentencing recommendations.
That understanding, coupled with his lawyer’s advice
and the fact that he decided to plead after listening to
several Government witnesses testify against him, indi-
cates that his plea and waiver were strategic choices
12 No. 11-2412
and, thus, valid. See United States v. England, 507 F.3d 581,
586 (7th Cir. 2007) (“A court does not have to give
the defendant a crash course in criminal law or trial
procedure before a defendant’s waiver of his right to
counsel will be voluntary.”); cf. DeRobertis, 715 F.2d at
1182-83 (noting, in evaluating the validity of a
defendant’s waiver of his right to a jury trial, that
“a defendant who is aware that the choice he faces is
between being judged by a group of his fellow citizens
or a judge may conclude intelligently that his lawyer’s
advice, based upon his experience and his knowledge
of law and procedure, is entitled to controlling weight”).
Favorably construing his argument, Alcala’s strongest
claim is that he did not understand that, once accepted
by the court, his plea constituted the basis for his con-
viction, and, as part of his conviction, an attempt
to withdraw it would fall within the scope of his
appellate waiver. Such specifics were not com-
municated by either the district court or counsel during
the colloquy. Moreover, neither the court nor counsel
explicitly stated that, once accepted by the court, he had
no right to revoke his plea and that his ability to do
so hinged on the court’s discretion. See generally
United States v. Redmond, 667 F.3d 863, 870-71 (7th Cir.
2012) (“There is no absolute right to withdraw a
guilty plea.”). Arguably, the terms of his plea did not
expressly and unambiguously clarify that he could not
change his mind, see United States v. Sakellarion, 649 F.3d
634, 638-39 (7th Cir. 2011) (“We enforce appellate waivers
when their terms are express and unambiguous . . . .”
No. 11-2412 13
(internal quotation marks omitted)), and we construe
ambiguities in his favor, see Shah, 665 F.3d at 837.
Nevertheless, the terms of the plea agreement and
the colloquy reveal that Alcala knowingly and
voluntarily waived his right to appeal and inherently
accepted the risk that he might regret that decision. He
could not have reasonably expected that the district
court would find him “not guilty” after he had pled
guilty. Once accepted by the court, his guilty plea was
tantamount to his conviction, and the terms of his
plea agreement clearly state that he agreed to waive
his right to appeal his conviction, see supra Part I. He
agreed to abide by all decisions of the court, reserving
his right to appeal on three specific and exhaustive
grounds: (1) any punishment in excess of the statutory
maximum; (2) a sentence based on a constitutionally
impermissible factor; and (3) ineffective assistance of
counsel. See supra Part I. None of those exceptions
underlie this appeal. At worst, he did not fully appreciate
that he might wish to change his mind later, and that
he could not become un-convicted except at the discre-
tion of the court. Yet, such is the risk with plea-
bargaining and waiver. See McGraw, 571 F.3d at 630-31
(“[P]lea-bargain appeal waivers involve risk: ‘[b]y
binding oneself one assumes the risk of future changes
in circumstances in light of which one’s bargain may
prove to have been a bad one. That is the risk inherent
in all contracts; they limit the parties’ ability to take
advantage of what may happen over the period in
which the contract is in effect.’ ” (quoting United States v.
Bownes, 405 F.3d 634, 636 (7th Cir. 2005))). That the
14 No. 11-2412
risk materialized for Alcala does not trump the knowing
and voluntary nature of his plea and waiver when he
accepted the Government’s deal. Our review is foreclosed.
III. Conclusion
For the foregoing reasons, we D ISMISS this appeal.
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