United States v. Fulvio Desantiago-Martinez

Dissent by

Judge FERGUSON.

ORDER, DISSENT, AND AMENDED ORDER

ORDER

The order filed November 25, 1992, 980 F.2d 582, is amended as follows: [Editor’s *395 Note: Amendments incorporated for purposes of publication].

The dissent in this case is amended by-adding the following part after part II and before the Conclusion at slip opinion, page 13809: [Editor’s Note: Amendments incorporated for purposes of publication].

With these amendments, the majority of the panel has voted to deny the petition for rehearing and to reject the suggestion for rehearing en banc. Judge Ferguson would grant the petition for rehearing and recommends acceptance of the suggestion for rehearing en bane.

The full court was advised of the suggestion for rehearing en bane. An active judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the vote of the nonrecused active judges in favor of en banc consideration. Fed.R.App.P. 85(b).

The petition for rehearing is DENIED and the suggestion for rehearing en banc is DENIED.

AMENDED ORDER

Fulvio DeSantiago-Martinez appeals his sentence, which was imposed after he pleaded guilty pursuant to the terms of a written plea agreement. The government now moves to dismiss the appeal on the ground that the plea agreement contains an express waiver of the right to appeal the sentence. We dismiss.

“[A]n express waiver of the right to appeal in a negotiated plea of guilty is valid if knowingly and voluntarily made.” United States v. Bolinger, 940 F.2d 478, 480 (9th Cir.1991); United States v. Navarro-Botello, 912 F.2d 318, 319, 321-22 (9th Cir.1990), cert. denied, — U.S. —, 112 S.Ct. 1488, 117 L.Ed.2d 629 (1992). A review of the record demonstrates that DeSantiago’s express waiver satisfies the knowing and voluntary requirement. The waiver explicitly states that DeSantiago is aware of his right to appeal under 18 U.S.C. § 3742(a) and that he expressly waives that right. The agreement is simple and clear, DeSantiago had the agreement read to him in Spanish, and De-Santiago had discussed the agreement with his lawyer. Moreover, the presentenee report, which DeSantiago also read, stated in simple terms that the plea agreement required him to waive his right to appeal. Cf. United States v. Grewal, 825 F.2d 220, 222 (9th Cir.1987) (defendant presumed to have knowledge of possibility of restitution where record demonstrates that he read, and discussed with his attorney, presentence report which disclosed possibility of restitution). The record also discloses that DeSantiago received the equivalent of twelve years of formal education in Mexico, attended grammar school in the United States for several years, and has “command of the English language and some ability to read and write it.” DeSantiago may not be a college graduate, see Dissent, at 13809, but he received at least two explicit notices that the plea agreement required him to waive his right to appeal. Thus, the record amply demonstrates that his waiver was knowing and voluntary.

DeSantiago argues that he did not waive his right to appeal the sentence because the district court failed to advise him of this waiver at the Rule 11 guilty plea hearing. We reject this argument. In our view, a Rule 11 colloquy on the waiver of the right to appeal is not a prerequisite to a finding that the waiver is valid; rather, a finding that the waiver is knowing and voluntary is sufficient. See generally Bolinger, 940 F.2d at 480; Navarro-Botello, 912 F.2d at 321-22; see also United States v. Davis, 954 F.2d 182, 186 & n. 1 (4th Cir.1992) (while district court “would be well advised to specifically discuss with a defendant, during the Rule 11 proceeding, any waiver of appellate rights contained in the defendant’s plea agreement” such discussion is not necessary prerequisite to finding of knowing and voluntary waiver); United States v. Marin, 961 F.2d 493, 496 (4th Cir.1992).

DeSantiago also argues that he did not waive his right to appeal because the district court failed to comply with Fed. R.Crim.P. 32(a)(2), which requires that the court advise a defendant of any right to appeal his sentence. In the plea agreement, *396 DeSantiago was explicitly advised of his right to appeal, and explicitly waived any right to appeal in the agreement. Thus, this argument lacks merit.

DISMISSED.