US v. Lopez-Armenta
No. 04-10081 (3-10-05). The defendant moved to suppress evidence. The ruling went against him. He then pled guilty without a plea agreement (getting safety valve), but seeking to preserve his suppression issue. The district court at sentencing advised appellant he had a right of appeal. On appeal, the gov't moved to dismiss because he had entered an unconditional guilty plea. The 9th granted the motion. The 9th acknowledged some ambiguity in the district court's advisement that there was a right of appeal, but the guilty plea itself was unconditional, and that, under precedent, would waive the right to continue to argue that issue. See US v. Floyd, 108 F.3d 202 (9th Cir. 1997).
posted by Jon Sands at 3/11/2005 03:40:00 PM
1 Comments:
the problem in Lopez-Armenta is in my view -- since it is my appeal is that two three judge panels came to opposite conclusions on the jurisdictional issue -- a three judge motion panel denied the gov'ts motion to dismiss acknowledging Flody but citing Buchanan as controlling and sent the underlying issue (suppression) to a merits panel(we argued substantial compliance and the gov'ts statement on the record at sentencing on why the defendant had pled w/o an agreement to preserve his suppression issue following by the district court's advisement of the right to appeal
-- the merits panel without notice that it would reconsider the jurisdictional issue came to a different conclusion citing Floyd and issued an unpublished memorandum.
We petitioned for a rehearing en banc -- specifically forgoing a panel rehearing on the idea that two three judge panels had come to opposition conclusions based on the same case law Buchanan and Floyd -- the merit panel in response to our en banc petition withdrew the unpublished memorandum and issued published opinion coming to the same conclusion. the merit panel then declared our petition moot w/o prejudice. We have filed another petition en banc on the issue that Buchanan and Floyd can not be reconciled and that it makes no sense that one need not be advised at the plea of the implied waiver of the right to appeal pre-plea constitutional violations but a court's specific advisement that you have the right to appeal at sentencing does not overcome that unadvised implied waiver.
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