                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                 No. 18-50391
                 Plaintiff-Appellee,
                                            D.C. No.
                 v.                      3:18-mj-20098-
                                           KSC-AJB-1
OSCAR JESUS CHAVEZ-DIAZ,
             Defendant-Appellant.           OPINION



     Appeal from the United States District Court
        for the Southern District of California
     Anthony J. Battaglia, District Judge, Presiding

       Argued and Submitted December 9, 2019
                Pasadena, California

                Filed February 5, 2020

       Before: Carlos T. Bea, Daniel P. Collins,
         and Daniel A. Bress, Circuit Judges.

                Opinion by Judge Bress
2              UNITED STATES V. CHAVEZ-DIAZ

                          SUMMARY *


                          Criminal Law

    The panel reversed a district judge’s holding regarding
appellate waiver, and remanded, in a case in which a
criminal defendant—who pleaded guilty before a magistrate
judge to one count of illegal entry into the United States—
attempted to raise on appeal to the district judge due process
and equal protection challenges to the handling of his
prosecution in the Southern District of California.

    The panel held that the defendant waived his right to
appeal his equal protection and due process claims by
entering an unconditional guilty plea, and that the district
court’s conclusion otherwise rested on a misinterpretation of
Class v. United States , 138 S. Ct. 798 (2018). The panel
held that the Menna-Blackledge exception—which allows
for constitutionally-based appeals, despite an unconditional
guilty plea, where the appeal, if successful, would mean that
the government cannot prosecute the defendant at all—does
not apply here. The panel explained that nothing in Class
undermines the general rule that a valid unconditional guilty
plea prevents a defendant from raising on appeal claims of
antecedent constitutional violations, which is true regardless
of whether the challenge on appeal contradicts “factual
guilt.”

    The panel rejected the defendant’s argument that if his
appeal is held to be waived, his guilty plea was not knowing
or voluntary because his counsel stated at the plea colloquy
    *
      This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
              UNITED STATES V. CHAVEZ-DIAZ                   3

that the defendant “is not waiving his appellate rights.” The
panel explained that the defendant’s counsel’s statement,
which was made in the context of a group colloquy in which
defendants were each separately stating whether they were
accepting the government’s plea offer, necessarily pertained
only to those rights that could be preserved despite pleading
guilty unconditionally.

   The panel remanded with instructions to dismiss the
appeal.


                         COUNSEL

Kara Hartzler (argued), Federal Defenders of San Diego, San
Diego, California, for Defendant-Appellant.

Benjamin Holley (argued) and Daniel E. Zipp, Assistant
United States Attorneys; Helen H. Hong, Chief, Appellate
Division; Robert S. Brewer, Jr., United States Attorney;
United States Attorney’s Office, San Diego, California, for
Plaintiff-Appellee.


                         OPINION

BRESS, Circuit Judge:

    Oscar Chavez-Diaz pleaded guilty before a magistrate
judge to one count of illegal entry into the United States, but
then attempted to raise on appeal to the district judge certain
due process and equal protection challenges to the handling
of his prosecution in the Southern District of California.
These constitutional challenges center on various practices
employed in the Southern District to accommodate a recent
4             UNITED STATES V. CHAVEZ-DIAZ

surge in illegal entry prosecutions. Because Chavez-Diaz
did not enter a conditional plea expressly preserving his right
to appeal particular issues, the threshold question in this case
is whether Chavez-Diaz’s unconditional guilty plea waived
his ability to raise the constitutional claims that he now
advances. We hold that Chavez-Diaz waived his right to
appeal these claims, and that the district court’s conclusion
otherwise rested on a misinterpretation of Class v. United
States, 138 S. Ct. 798 (2018). We therefore reverse and
remand with instructions to dismiss the appeal.

                               I

    Chavez-Diaz, a Mexican citizen, illegally entered the
United States on July 10, 2018. He was charged with
misdemeanor illegal entry in violation of 8 U.S.C.
§ 1325(a)(2), which is punishable by up to six months in
prison. In light of the Department of Justice’s increased
prosecution of illegal entry offenses and the Department’s
offer of time-served sentences to many of those charged with
simple misdemeanor illegal entry, the Southern District of
California—which bears a disproportionate share of these
prosecutions—instituted a separate court calendar and set of
procedures for illegal entry cases. At the time of Chavez-
Diaz’s prosecution, these procedures were as follows.
Typically on the next court day after their apprehension,
§ 1325 defendants were given the opportunity to meet with
a court-appointed lawyer, have an initial appearance before
a magistrate judge, and plead guilty pursuant to a plea
agreement in which the government agreed to recommend a
time-served sentence (an option afforded to most
defendants). This would all happen in the same day, and the
defendant would subsequently be removed from the United
                UNITED STATES V. CHAVEZ-DIAZ                           5

States. 1 Defendants who did not plead guilty had their cases
assigned to a district judge or magistrate judge for trial.

    Chavez-Diaz appeared before a magistrate judge the day
after Border Patrol detained him. The hearing involved
numerous § 1325 defendants appearing together, a practice
we have previously approved. See United States v. Diaz-
Ramirez, 646 F.3d 653, 656–58 (9th Cir. 2011). At the
hearing, Chavez-Diaz’s attorney objected that “this entire
system violates equal protection and due process.” This was
in specific reference to the Southern District’s separate
calendaring of § 1325 offenses, which Chavez-Diaz claimed
reflected an improper classification based on alienage and
ethnicity. Chavez-Diaz’s counsel also objected to other
practices in the Southern District relating to § 1325
defendants, specifically, that such defendants were shackled
during proceedings, met with their attorneys in a converted
garage while shackled in the presence of U.S. Marshals, and
allegedly suffered delays in presentment before a magistrate
judge due to their detention at Border Patrol stations. The
magistrate judge overruled these various objections.

    Chavez-Diaz then informed the magistrate judge that he
wished to plead guilty. At the hearing, the government
stated that it was offering all defendants except one a plea
agreement by which each defendant waived his right to
challenge or appeal his sentence or conviction (except for
ineffective assistance of counsel), in return for the
government recommending a time-served sentence.
Chavez-Diaz pleaded guilty without accepting the plea
agreement, and his counsel informed the magistrate judge

    1
      The Southern District has since changed its practices and § 1325
defendants must now wait four days after their initial appearances before
pleading guilty.
6             UNITED STATES V. CHAVEZ-DIAZ

that “Mr. Chavez-Diaz is not waiving his appellate rights.
He is not.” After conducting a standard plea colloquy, the
magistrate judge found that Chavez-Diaz entered his plea
knowingly and voluntarily. The government recommended
a 15-day sentence; Chavez-Diaz argued for time served. The
magistrate judge sentenced Chavez-Diaz to time served,
which amounted to one night in custody.

    Chavez-Diaz appealed under 18 U.S.C. § 3402, which
allows appeals to the district court upon conviction by a
magistrate judge. The basis for Chavez-Diaz’s appeal was
the due process and equal protection challenges that the
magistrate judge had rejected. The district court held that
Chavez-Diaz “did not waive his constitutional challenge by
his plea under Class v. United States, 138 S. Ct. 798 (2018),
as he is not challenging his factual guilt but only the
constitutionality of the proceedings.” The district court then
rejected Chavez-Diaz’s constitutional arguments on the
merits, holding, inter alia, that § 1325 defendants were not
classified based upon their alienage but rather upon the
charges against them, and that the Southern District’s
calendaring system was a rational response to the flood of
§ 1325 prosecutions. Chavez-Diaz appealed to this Court.
In response, the government renewed its argument that
Chavez-Diaz waived his right to appeal these issues as a
result of his guilty plea.

                               II

                               A

    The starting point for our analysis is the difference
between conditional and unconditional guilty pleas. Under
Federal Rule of Criminal Procedure 11(a)(2), “[w]ith the
consent of the court and the government, a defendant may
enter a conditional plea of guilty . . . reserving in writing the
              UNITED STATES V. CHAVEZ-DIAZ                   7

right to have an appellate court review an adverse
determination of a specified pretrial motion. A defendant
who prevails on appeal may then withdraw the plea.” A
defendant has no entitlement to a conditional guilty plea. As
we have held, “[t]he language of Rule 11(a)(2) is entirely
permissive and creates no enforceable right to enter a
conditional plea,” requiring instead the consent of both the
government and the court. In re Gallaher, 548 F.3d 713, 716
(9th Cir. 2008) (quotations and alterations omitted). But
when a defendant does plead guilty conditionally, the scope
of the issues that may be appealed is relatively
straightforward: it depends on what is stated in the plea
agreement or other writing memorializing the conditional
plea. See, e.g., United States v. Arzate-Nunez, 18 F.3d 730,
737 (9th Cir. 1994); United States v. Echegoyen, 799 F.2d
1271, 1275–76 (9th Cir. 1986).

    As often happens, Chavez-Diaz pleaded guilty
unconditionally, e.g., without a written plea agreement
preserving identified issues for appeal. In that situation, and
subject to a notable exception that we discuss below, a
defendant’s ability to raise issues on appeal is severely
constrained. As the Supreme Court held long ago,

       When a criminal defendant has solemnly
       admitted in open court that he is in fact guilty
       of the offense with which he is charged, he
       may not thereafter raise independent claims
       relating to the deprivation of constitutional
       rights that occurred prior to the entry of the
       guilty plea. He may only attack the voluntary
       and intelligent character of the guilty plea
       ....
8             UNITED STATES V. CHAVEZ-DIAZ

Tollett v. Henderson, 411 U.S. 258, 267 (1973). As we have
thus held, “it is well-settled that an unconditional guilty plea
constitutes a waiver of the right to appeal all
nonjurisdictional antecedent rulings and cures all antecedent
constitutional defects.” United States v. Lopez-Armenta,
400 F.3d 1173, 1175 (9th Cir. 2005); see also United States
v. Brizan, 709 F.3d 864, 866–67 (9th Cir. 2013); United
States v. Jackson, 697 F.3d 1141, 1144 (9th Cir. 2012);
United States v. Bohn, 956 F.2d 208, 209 (9th Cir. 1992) (per
curiam).

    This principle of law inheres in the nature and function
of the guilty plea itself, which “represents a break in the
chain of events which has preceded it in the criminal
process.” Tollett, 411 U.S. at 267. By pleading guilty, a
defendant “‘foregoes not only a fair trial, but also other
accompanying constitutional guarantees.’” Class, 138 S. Ct.
at 805 (quoting United States v. Ruiz, 536 U.S. 622, 628–29
(2002)).      Allowing a defendant to plead guilty
unconditionally, but nevertheless to raise on appeal the very
constitutional challenges that a guilty plea is designed to
relinquish, would give the defendant the benefits of a guilty
plea without the attendant waiver of rights that a plea
necessarily entails. That is why the Supreme Court has
explained that a valid guilty plea “renders irrelevant—and
thereby prevents the defendant from appealing—the
constitutionality of case-related government conduct that
takes place before the plea is entered.” Id. at 805.

    Consistent with the foregoing, we have routinely held
that defendants who pleaded guilty unconditionally cannot
raise on appeal various claims of antecedent legal error. See,
e.g., Brizan, 709 F.3d at 866 (alleged deprivation of ability
to raise Fifth Amendment self-incrimination defense);
Jackson, 697 F.3d at 1144 (alleged Speedy Trial Act
             UNITED STATES V. CHAVEZ-DIAZ                   9

violation); Lopez-Armenta, 400 F.3d at 1175 (alleged Fourth
Amendment violation and subsequent denial of motion to
suppress); Bohn, 956 F.2d at 209 (alleged Speedy Trial Act
and right to counsel violations).

    A defendant who pleads guilty unconditionally and then
purports to raise on appeal a challenge cast in equal
protection or due process terms meets the same result: “As a
general rule, a guilty plea erases claims of constitutional
violation arising before the plea.” United States v. Montilla,
870 F.2d 549, 552 (9th Cir. 1989), amended 907 F.2d 115
(9th Cir. 1990). In Montilla, we held that a defendant who
pleaded guilty waived a due process claim based on alleged
“outrageous government conduct” by undercover agents. Id.
at 551–53. In United States v. O’Donnell, 539 F.2d 1233,
1236–37 (9th Cir. 1976), superseded by statute on other
grounds as recognized in United States v. Smith, 60 F.3d
595, 598 (9th Cir. 1995), we held that a defendant waived
his due process challenge to a delay in prosecution by
pleading guilty. And in Tollett, one of the Supreme Court’s
landmark precedents in this area, the Court held that a
defendant who pleaded guilty could not later raise an equal
protection challenge to “the systematic exclusion of”
African Americans as grand jurors. 411 U.S. at 259.

    Under these cases, Chavez-Diaz through his guilty plea
plainly waived his right to appeal his equal protection and
due process claims. As explained above, Chavez-Diaz
argues that the Southern District’s separate § 1325 calendar
impermissibly classifies defendants based on alienage and
creates a “‘separate but equal’ system . . . in our federal
courthouses.” Appellant’s Opening Br. at 1. Chavez-Diaz
also argues that the circumstances of his meeting with his
attorney, his shackling, and delays in presentment to a
magistrate judge violated due process. These alleged
10              UNITED STATES V. CHAVEZ-DIAZ

constitutional violations “ar[ose] before” Chavez-Diaz
entered his guilty plea, Montilla, 870 F.2d at 552, and
Chavez-Diaz does not argue they rendered his plea
unknowing or involuntary.           Accordingly, these are
challenges to “the constitutionality of case-related
government conduct that takes place before the plea is
entered.” Class, 138 S. Ct. at 805. Chavez-Diaz waived his
ability to raise these claims by pleading guilty. 2

                                   B

    Citing the Supreme Court’s decision in Class, 138 S. Ct.
798, the district court held that Chavez-Diaz had not waived
his right to bring his equal protection and due process
challenges on appeal. We understand the district court to
have relied upon the so-called Menna-Blackledge exception,
see Menna v. New York, 423 U.S. 61 (1975) (per curiam);
Blackledge v. Perry, 417 U.S. 21 (1974), on which Class is
the Supreme Court’s latest word. We hold, however, that the
Menna-Blackledge exception does not apply here, and that
the district court’s interpretation of Class was mistaken.

    The Menna-Blackledge exception allows for
constitutionally-based appeals—despite an unconditional
guilty plea—where the appeal, if successful, would mean
that the government cannot prosecute the defendant at all.
See Class, 138 S. Ct. at 803 (explaining that the Menna-
Blackledge exception “implicates ‘the very power of the

     2
      This does not mean that the claims Chavez-Diaz seeks to assert are
never susceptible to our review. Chavez-Diaz could have attempted to
secure a conditional plea that allowed him to appeal these claims. There
may be other mechanisms, including civil litigation, through which these
claims could have been preserved and presented. What Chavez-Diaz
could not do is plead guilty unconditionally and then try to raise claims
that his guilty plea forecloses.
              UNITED STATES V. CHAVEZ-DIAZ                   11

State’ to prosecute the defendant”) (quoting Blackledge,
417 U.S. at 30). These are what we have sometimes referred
to as “jurisdictional claims,” in that they “challenge the right
of the state to hale the defendant into court.” Montilla,
870 F.2d at 552. The Menna-Blackledge exception therefore
applies “where on the face of the record the court had no
power to enter the conviction or impose the sentence.”
United States v. Broce, 488 U.S. 563, 569 (1989); see also
Montilla, 870 F.2d at 552 (Menna-Blackledge applies where
“the judge could determine at the time of accepting the plea,
from the face of the indictment or from the record, that the
government lacked the power to bring the indictment”).

    Thus, in Menna, the Supreme Court held that a defendant
did not waive a double jeopardy challenge because such a
claim, if successful, “precluded the State from haling [the
defendant] into court on the charge to which he had pleaded
guilty.” 423 U.S. at 62; see also id. at 63 n.2 (“[A] plea of
guilty to a charge does not waive a claim that—judged on its
face—the charge is one which the State may not
constitutionally prosecute.”). Similarly, in Blackledge, the
Supreme Court held that a guilty plea did not waive the right
to challenge a conviction on grounds of vindictive
prosecution, because such a claim protects the right “not to
be haled into court at all.” 417 U.S. at 30 (emphasis added);
see also Broce, 488 U.S. at 575 (“In Blackledge, the
concessions implicit in the defendant’s guilty plea were
simply irrelevant, because the constitutional infirmity in the
proceedings lay in the State’s power to bring any indictment
at all.”).

    Recently, the Supreme Court applied Menna-Blackledge
in the context of a challenge to the constitutionality of a
statute of conviction. In Class, the defendant pleaded guilty
to a firearms offense under 40 U.S.C. § 5104(e)(1), and
12           UNITED STATES V. CHAVEZ-DIAZ

entered a written plea agreement that did not expressly
preserve his ability to appeal whether that statute was
unconstitutional because it allegedly violated the Second
Amendment and was unconstitutionally vague. 138 S. Ct. at
802. Class nevertheless tried to appeal on those grounds,
and the question before the Court was whether he had the
ability to do so notwithstanding his guilty plea. Id. at 801–
02. The Supreme Court held that Class’ claims fell within
the Menna-Blackledge exception because “[t]hey challenge
the Government’s power to criminalize Class’ (admitted)
conduct,” and “thereby call into question the Government’s
power to constitutionally prosecute him.” Id. at 805
(quotations omitted).

    As the foregoing description of Menna, Blackledge, and
Class demonstrates, Chavez-Diaz’s claims do not fall within
the narrow Menna-Blackledge exception. None of those
claims “would extinguish the government’s power to
constitutionally prosecute the defendant if the claim[s] were
successful.” Class, 138 S. Ct. at 806. Unlike the defendant
in Class, Chavez-Diaz does not argue that Congress lacked
the power to criminalize illegal entry into the United States
or that the government could not prosecute him for such a
violation. Indeed, Chavez-Diaz concedes that Congress has
“broad plenary power to draft laws (such as § 1325),” and he
does not “challenge the executive’s right to exercise
prosecutorial discretion in a manner it sees fit.” Appellant’s
Opening Br. 39–40. At oral argument, moreover, Chavez-
Diaz conceded, as he understandably must, that if his claims
were successful, the government could still retry him. That
inevitable concession necessarily removes Chavez-Diaz
from the limited ambit of the Menna-Blackledge exception,
because his challenges do not “amount[] to a claim that ‘the
State may not convict’ him.” Class, 138 S. Ct. at 804
(quoting Menna, 423 U.S. at 63 n.2).
             UNITED STATES V. CHAVEZ-DIAZ                  13

    The district court held otherwise on the theory that
Chavez-Diaz “is not challenging his factual guilt but only the
constitutionality of the proceedings.” That is not a correct
interpretation of Class or the Menna-Blackledge exception.
It is true that Class reiterated that “a valid guilty plea
relinquishes any claim that would contradict the ‘admissions
necessarily made upon entry of a voluntary plea of guilty.’”
138 S. Ct. at 805 (quoting Broce, 488 U.S. at 573–74). Such
a claim raised on appeal—which in the district court’s
typology challenges “factual guilt”—necessarily fails to
meet the Menna-Blackledge exception. See id.; Broce,
488 U.S. at 570–71, 574–75.

    But the converse is not true: that simply because a claim
on appeal does not challenge factual guilt (or contradict it),
that the claim necessarily qualifies for the Menna-
Blackledge exception. Nothing in Class undermines the
more general rule, which Class reiterated, that “[a] valid
guilty plea also renders irrelevant—and thereby prevents the
defendant from appealing—the constitutionality of case-
related government conduct that takes place before the plea
is entered.” Class, 138 S. Ct. at 805. That is true regardless
of whether the challenge on appeal contradicts “factual
guilt” or not. See id. A Fourth Amendment claim, for
example, is a constitutional challenge that often “has no
bearing on guilt.” Linkletter v. Walker, 381 U.S. 618, 638
(1965).     The same is true of claims of allegedly
unconstitutional delays in prosecution, see O’Donnell,
539 F.2d at 1236–37, or impermissible racial discrimination
in the grand jury selection process, see Tollett, 411 U.S. at
259. But none of these claims can be raised on appeal
following an unconditional guilty plea. See Class, 138 S. Ct.
at 805–06; Tollett, 411 U.S. at 259; Lopez-Armenta,
400 F.3d at 1175; O’Donnell, 539 F.2d at 1236–37. In other
words, in the face of an unconditional guilty plea, that a
14            UNITED STATES V. CHAVEZ-DIAZ

claim on appeal challenges or contradicts the defendant’s
“factual guilt” is sufficient to find waiver. See Class, 138 S.
Ct. at 805; Broce, 488 U.S. at 575–76. But the absence of a
challenge to “factual guilt” does not mean the Menna-
Blackledge exception thereby applies.

    This is apparent from Class’ own discussion of why the
Menna-Blackledge exception applied to Class. After
concluding that Class’ constitutional challenge to his statute
of conviction met the exception, see 138 S. Ct. at 803–05,
Class then proceeded to address various reasons why the
exception might not apply, one of which is if the challenge
“in any way den[ies] that [Class] engaged in the conduct to
which he admitted.” Id. at 805–06. The Court held that
Class’ challenges did not contradict the admissions made in
his guilty plea, and so this was not a reason to deny
application of Menna-Blackledge to Class. Id. But as the
Supreme Court’s own analysis confirmed, that did not then
mean the Menna-Blackledge exception automatically
applied. Such a holding would have obviated the need for
the Supreme Court’s extensive discussion of why Class’
particular challenge affirmatively met the exception. See id.
at 803–06.

    These same points show the error in the district court’s
determination that Chavez-Diaz could proceed with an
appeal because he was challenging “only the
constitutionality of the proceedings.” To the extent the
district court meant to suggest that Chavez-Diaz is
challenging the government’s power to prosecute him at
all—and that he thereby falls within the limited confines of
the Menna-Blackledge exception—this fails for the reasons
explained above. And to the extent the district court meant
that Chavez-Diaz may appeal because he raises
constitutional challenges independent of his factual guilt,
             UNITED STATES V. CHAVEZ-DIAZ                 15

this too fails. Once again, as described above, various types
of challenges fall outside the Menna-Blackledge exception,
including those of a constitutional nature. See Class, 138 S.
Ct. at 805 (“[A] guilty plea does implicitly waive some
claims, including some constitutional claims.”). The
necessary reason is that many constitutional claims, which
challenge the constitutionality of the proceedings in a broad
sense, nonetheless do not “implicate[] the very power of the
State to prosecute the defendant.” Id. at 803 (quotations
omitted). Under Supreme Court precedent, that is the proper
demarcation of the Menna-Blackledge exception to the
general rule that a defendant who has entered a valid
unconditional guilty plea cannot raise on appeal claims for
antecedent constitutional violations.

                             C

    Chavez-Diaz argues finally that if his appeal is held to
be waived, his guilty plea was not knowing or voluntary
because his counsel stated at the plea colloquy that “Mr.
Chavez-Diaz is not waiving his appellate rights. He is not.”
This argument fails. Counsel’s statement was made in the
context of a group plea colloquy in which defendants were
each separately stating whether they were accepting the
government’s plea offer; Chavez-Diaz’s counsel indicated
he was not. But counsel’s statement that “Mr. Chavez-Diaz
is not waiving his appellate rights” necessarily pertained
only to those rights that could be preserved despite pleading
unconditionally. The statement did not reference Chavez-
Diaz’s equal protection and due process claims, and Chavez-
Diaz points to nothing in the record indicating he was told
that he could appeal his conviction on those grounds.

    The Supreme Court’s “decisions have not suggested that
conscious waiver is necessary with respect to each potential
defense relinquished by a plea of guilty,” and
16           UNITED STATES V. CHAVEZ-DIAZ

“[r]elinquishment derives not from any inquiry into a
defendant’s subjective understanding of the range of
potential defenses.” Broce, 488 U.S. at 573–74. Under the
circumstances, there is thus no basis to conclude that
Chavez-Diaz’s plea was unknowing or involuntary.

                         *   *   *

    We hold that Chavez-Diaz waived his right to appeal his
equal protection and due process claims by entering an
unconditional guilty plea. We therefore reverse the district
court’s holding to the contrary and remand with instructions
to dismiss the appeal.

     REVERSED and REMANDED.
