dissenting.
I respectfully, and reluctantly, dissent.
At the change of plea colloquy, the defense and prosecution brought out that there was a disagreement about whether the criminal conviction was an aggravated felony and the magistrate judge made sure that the defendant understood that there was a disagreement, that it would be submitted to the district judge for decision at sentencing, and that he would not be able to appeal the district judge’s decision because his plea agreement waived his right to appeal.
It is true that at the sentencing, defense counsel and the district judge, who did not preside at the change of plea, seemed to be under the impression that the issue might have been reserved from the waiver, so that it could be appealed, but it plainly was not. This ambiguity or confusion at sentencing cannot operate backwards to inject an ambiguity that was not there in the *718sentencing agreement and the change of plea colloquy. There was no upward departure or other deviation from the plea agreement, the defendant was sentenced in accord with it and the only dispute was over a legal interpretation, which was waived.
My dissent is reluctant because, although the law required us, in my view, to hold the defendant to his waiver, there is no injustice in the reversal and remand. The crime that was determined to be an aggravated felony has subsequently been held not to be, by the Supreme Court in Leocal v. Ashcroft.1 Thus this is a case where the defendant waived his right to what would have been a good appeal.
. Leocal v. Ashcroft, 543 U.S.-, 125 S.Ct. 377, 382-83, 160 L.Ed.2d 271 (2004).