                                                                            FILED
                            NOT FOR PUBLICATION
                                                                             MAY 03 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 16-30114

              Plaintiff-Appellee,                D.C. No. 2:15-cr-00229-RSL-1

 v.
                                                 ORDER*
RAUL VELASCO-SOTO,

              Defendant-Appellant.


                    Appeal from the United States District Court
                      for the Western District of Washington
                     Robert S. Lasnik, District Judge, Presiding

                         Argued and Submitted March 5, 2018
                                 Seattle, Washington

Before: RAWLINSON, CLIFTON, and CHRISTEN, Circuit Judges.

      Appellant Raul Velasco-Soto appeals his conviction, specifically

challenging the denial by the district court of his motion to withdraw guilty plea.

We dismiss the appeal.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      Velasco-Soto pled guilty pursuant to a plea agreement. The district court

accepted the plea agreement and found that the guilty plea was made “knowingly,

intelligently, and voluntarily.” The plea agreement included a waiver by Velasco-

Soto of the right to appeal, subject to certain conditions and qualifications not

relevant here. The Government moved to dismiss this appeal based on that waiver.

That motion was denied by a motions panel of this court without prejudice to

renewing the argument for dismissal before this panel. The Government has

renewed that argument.

      Velasco-Soto argues that the appellate waiver should not be enforced for

three reasons. First, he argues that there is not a categorical rule mandating

dismissal, citing United States v. Torres, 828 F.3d 1113, 1124 (9th Cir. 2016)

(“Although we retain jurisdiction over an appeal by a defendant who has signed an

appellate waiver, we will not ordinarily exercise that jurisdiction to review the

merits of an appeal if the defendant has validly waived his right to appeal”). That

may be true, but as the statement which he quoted from Torres indicates, an

appellate waiver is “ordinarily” enforced. The record indicates Velasco-Soto

entered the plea agreement and waived his appellate rights knowingly,

intelligently, and voluntarily, and he has not argued to the contrary.




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      Second, Velasco-Soto argues that the plea agreement provided a remedy

other than dismissal of any appeal. Specifically, the agreement provided that if

Velasco-Soto breached it, then the Government could withdraw from the

agreement and prosecute him for additional charges, including those which the

Government had agreed to dismiss. The agreement did not identify that remedy as

exclusive, however, and it would be illogical to interpret the agreement in that

manner. That the parties and the district court all understood to the contrary was

demonstrated at the sentencing hearing. After pronouncing sentence, the district

court asked counsel whether there was an appeal waiver, and the attorneys for both

Velasco-Soto and the Government confirmed that there was. As a result, the court

stated that it was not going to advise him of any appellate rights, without objection

from either party.

      That history also undermines Velasco-Soto’s third argument, that he retained

the right to appeal because he had been advised by the district court of such a right.

At the time the district court considered Velasco-Soto’s motion to withdraw his

guilty plea, the court and the parties discussed the possibility of an interlocutory

appeal presenting the underlying issue of whether his prior conviction should be

treated as a crime of violence under the categorical approach. That is not the

course that was taken, however, and Velasco-Soto does not raise that as an issue on


                                           3
appeal. There is precedent that supports permitting a defendant to appeal, despite

an appellate waiver, if he was led to understand by statements made by the district

court at the time that sentence was imposed that he had the right to appeal

nonetheless. See, e.g., United States v. Buchanan, 59 F.3d 914, 917–18 (9th Cir.

1995). But no such statements were made to Velasco-Soto. To the contrary, at his

sentencing the appellate waiver was explicitly recognized by the district court.

Velasco-Soto was not misled.

      APPEAL DISMISSED.




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