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United States of America v. Eduardo Arias-Espinosa

November 30, 2012

UNITED STATES OF AMERICA, PLAINTIFF - APPELLEE,
v.
EDUARDO ARIAS-ESPINOSA, DEFENDANT - APPELLANT.



Appeal from the United States District Court for the District of Arizona David C. Bury, District Judge, Presiding D.C. No. 4:11-cr-02189-DCB-GEE-1

The opinion of the court was delivered by: Gould, Circuit Judge:

FOR PUBLICATION

OPINION

Argued and Submitted November 7, 2012--San Francisco, California

Before: Ronald M. Gould and Milan D. Smith, Jr., Circuit Judges, and Kevin T. Duffy, District Judge.*fn1

Opinion by Judge Gould

SUMMARY*fn2

Criminal Law

Dismissing an appeal from a sentence, the panel held that the district court's statement near the end of the sentencing hearing that the defendant "may have a right to appeal" was equivocal or ambiguous and therefore did not vitiate the defendant's explicit waiver of the right to appeal in his written plea agreement.

OPINION

Eduardo Arias-Espinosa appeals his 51-month sentence for illegal re-entry into the United States in violation of 8 U.S.C. § 1326, as enhanced by § 1326(b)(2). The government contends that Arias-Espinosa waived his right to appeal in his written plea agreement. We agree and dismiss this appeal.

I

Arias-Espinosa pleaded guilty to illegal re-entry into the United States and signed a written plea agreement. The agreement included an explicit waiver of his right to appeal his conviction and any sentence imposed within the range permitted by the agreement. At the change of plea hearing before a magistrate judge, Arias-Espinosa said that his counsel had explained the plea agreement and that he understood it. He also said that he understood that he was waiving his right to appeal. The magistrate judge in his findings and recommendations told the district court that Arias-Espinosa had knowingly, intelligently, and voluntarily waived his right to appeal as stipulated in the plea agreement. At the sentencing hearing, the district court adopted the magistrate judge's findings and accepted Arias-Espinosa's guilty plea. The court sentenced Arias-Espinosa to 51 months, within the range specified in the plea agreement. But at ...


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