U.S. v. Arias-Espinosa, No. 11-10663 (11-30-12)(Gould with M. Smith and Duffy, DJ SDNY).

An appeal waiver in a plea is usually the end of appellate matter. However, if a court tells a defendant he has a right to appeal, and the government doesn't pipe up and say, No, he doesn't," the defendant may get to take it up. What if the statement is somewhat equivocal? The 9th then has to decide how ambiguous. That is what this appeal concerns. "We hold that the district court's statement that Arias-Espinosa 'may have a right to appeal' was equivocal or ambiguous, rather than being made unequivocally, clearly, and without qualification, and so does not vitiate his explicit waiver of the right to appeal in his written plea agreement." P. 7. This was an appeal from a 1326 plea agreement and sentence with an appeal waiver. Of interest is the 9th's characterization of "may have a right to appeal" as equivocal. This phrase, widely used in some districts, will not be heard again. From now on, courts will emphatically state "no right to appeal."