                     FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                          No. 05-30401
                Plaintiff-Appellee,
               v.                                    D.C. No.
                                                  CR-04-02157-FVS
DOMINGO JACOBO CASTILLO,
                                                     OPINION
             Defendant-Appellant.
                                            
         Appeal from the United States District Court
            for the Eastern District of Washington
          Fred L. Van Sickle, Chief Judge, Presiding

                     Submitted June 7, 2006*
                       Seattle, Washington

                     Filed September 22, 2006

      Before: Robert R. Beezer, Richard C. Tallman, and
                Jay S. Bybee, Circuit Judges.

                     Opinion by Judge Beezer;
                      Dissent by Judge Bybee




  *The panel finds this case appropriate for submission without oral argu-
ment pursuant to Federal Rule of Appellate Procedure 34(a)(2).

                                 11905
11906            UNITED STATES v. CASTILLO


                       COUNSEL

Dawn M. Reynolds, Dallas, Oregon, for the defendant-
appellant.

K. Jill Bolton, Assistant United States Attorney, Spokane,
Washington, for the plaintiff-appellee.
                      UNITED STATES v. CASTILLO                      11907
                               OPINION

BEEZER, Circuit Judge:

   Domingo Jacobo Castillo (“Jacobo”) pleaded guilty to one
count of being an illegal alien in possession of a firearm in
violation of 18 U.S.C. § 922(g)(5). He now appeals the denial
of his pre-plea motion to suppress and argues that the delay
between the discovery of the firearm and his indictment con-
stitutes a violation of his Fifth Amendment due process rights.
We lack jurisdiction over this appeal because Jacobo entered
an unconditional guilty plea.

   We have previously held 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. Reyes-Platero,
224 F.3d 1112, 1115 (9th Cir. 2000) (“[W]e do not have juris-
diction over the merits of appeals based upon pre-waiver con-
stitutional defects, and we must dismiss that portion of the
appeal.”); United States v. Floyd, 108 F.3d 202, 204 (9th Cir.
1997) (“Unless [appellant’s] plea conformed with [Rule
11(a)(2)’s] specific requirements, we have no jurisdiction to
hear her appeal.”); United States v. Carrasco, 786 F.2d 1452,
1453-54 (9th Cir. 1986) (“We do not have jurisdiction to
decide [appellant’s] appeal of the denial of the suppression
motion unless she entered a valid conditional plea.”).1
  1
    A defendant may preserve material pretrial issues for appeal by enter-
ing a conditional plea pursuant to Federal Rule of Criminal Procedure
11(a)(2). The guilty plea is conditioned upon an appellate court’s affir-
mance of the trial court’s ruling on the pretrial motions. In the event that
the defendant prevails on appeal, the plea is withdrawn. This procedure
allows a defendant to preserve his right to appeal the pretrial rulings while
avoiding the expense of a trial where acquittal is unlikely in light of the
adverse rulings.
11908                 UNITED STATES v. CASTILLO
  Jacobo did not enter a conditional plea pursuant to Fed. R.
Crim. P. 11(a)(2) but plead unconditionally. That should have
been the end of this appeal.

   [1] The government, however, does not argue that we lack
jurisdiction due to Jacobo’s unconditional plea. The govern-
ment’s silence presents the undecided question whether the
government can waive the jurisdictional defect thereby allow-
ing the court to decide the merits of the appeal. See, e.g.,
United States v. Schlesinger, 49 F.3d 483, 485 (9th Cir. 1994)
(“This court will not address waiver if not raised by the
opposing party.”); United States v. Lewis, 798 F.2d 1250 (9th
Cir. 1986) amending United States v. Lewis, 787 F.2d 1218
(9th Cir. 1986) (“Because the government failed to raise this
question in its brief or at oral argument, we decline to address
it.”).

  [2] We hold that the jurisdictional defect is not waivable
and a defendant’s failure to preserve his appellate rights by
entering a conditional plea pursuant to Rule 11(a)(2) deprives
us of the authority to consider the merits of a claim.2 As stated
by the Supreme Court in Tollett v. Henderson:

     [A] guilty plea represents a break in the chain of
     events which has preceded it in the criminal process.
     When a criminal defendant has solemnly admitted in
     open court that he is in fact guilty of the offense with
   2
     This holding does not alter our conclusion in United States v. Garcia-
Lopez, 309 F.3d 1121, 1122 (9th Cir. 2002), where we held that the gov-
ernment may expressly “waive the waiver” of a defendant’s right to appeal
application of the sentencing guidelines where he had waived appellate
rights in his plea agreement. In that case the waiver was a matter of con-
tract between the government and the defendant and sentencing occurred
after the plea. Appealing a sentencing issue does not impact the finding
of guilt. See Reyes-Platero, 224 F.3d at 1115-16 (holding that the rule in
Tollett only applies to pre-plea motions and does not eliminate jurisdiction
for claims of constitutional error “occurring after the entry of a guilty
plea”).
                   UNITED STATES v. CASTILLO               11909
    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.

411 U.S. 258, 267 (1973). The Supreme Court clarified that
the holding in Tollett was not a simple issue of waiver of the
right to appeal but was based on the determination that:

    [A] counseled plea of guilty is an admission of fac-
    tual guilt so reliable that, where voluntary and intel-
    ligent, it quite validly removes the issue of factual
    guilt from the case . . . [and] factual guilt is a suffi-
    cient basis for the State’s imposition of punishment.
    A guilty plea, therefore, simply renders irrelevant
    those constitutional violations not logically inconsis-
    tent with the valid establishment of factual guilt and
    which do not stand in the way of conviction, if fac-
    tual guilt is validly established.

Menna v. New York, 423 U.S. 61, 63 n.2 (1975). An uncondi-
tional guilty plea renders rulings on pretrial motions irrelevant
and deprives appellate courts of the ability to reassess those
rulings. See Lopez-Armenta, 400 F.3d at 1175 (“[A]n uncon-
ditional guilty plea . . . cures all antecedent constitutional
defects.”) (emphasis added). The government’s waiver cannot
alter the “break in the chain of events” and create jurisdiction.
See Torres v. Oakland Scavenger Co., 487 U.S. 312, 317 n.3
(1988) (“a litigant’s failure to clear a jurisdictional hurdle can
never be ‘harmless’ or waived by a court”); Gusman-Andrade
v. Gonzales, 407 F.3d 1073, 1077 (9th Cir. 2005) (holding
that jurisdiction cannot be created by the parties’ agreement
through consent or stipulation and the parties cannot “waive
its absence”).

   In United States v. Rogers, 387 F.3d 925 (7th Cir. 2004),
the Seventh Circuit considered the same issue and determined
that an unconditional plea created a non-waivable jurisdic-
11910              UNITED STATES v. CASTILLO
tional bar to appellate review. In Rogers, as in this case, the
government did present the waiver argument in its briefs and
addressed only the merits of the underlying constitutional
claim. Id. at 934. The court concluded that despite the govern-
ment’s waiver of the jurisdictional argument, it had no juris-
diction to consider the merits of appellant’s claims. Id. (citing
cases).

   [3] Jacobo’s entry of an unconditional guilty plea deprives
us of jurisdiction to consider his pre-plea constitutional
claims.

  DISMISSED.



BYBEE, Circuit Judge, dissenting:

  I write separately because our precedents will not support
—and, indeed, they contradict—the majority’s holding. In
particular, the majority’s holding clearly conflicts with our
decision in United States v. Garcia-Lopez, 309 F.3d 1121,
1122 (9th Cir. 2002). I believe that we cannot dismiss this
case for want of jurisdiction without seeking en banc
approval.

   I agree that Jacobo relinquished his pretrial constitutional
appeals at sentencing. See Tollett v. Henderson, 411 U.S. 258
(1973). The question is: What are the consequences? Not
infrequently, a defendant who has waived his right to appeal
in a plea agreement will file an appeal anyway. Ordinarily, in
such cases, the government will advise us of the waiver, either
by motion or in its brief, and we will dismiss the appeal, often
in a memorandum disposition. But in this case, the govern-
ment answered Jacobo’s contentions on the merits, never
arguing that Jacobo’s appeal was barred or moving to dismiss
his appeal. Nevertheless, the majority holds that Jacobo’s
waiver is a jurisdictional bar, and that we must dismiss the
                   UNITED STATES v. CASTILLO               11911
appeal, even though the government never raised the point. In
support of its holding the majority cites a number of cases in
which we dismissed the appeal. Maj. op. at 11907. But in
those cases, the government properly asserted the bar to
appeal. See United States v. Lopez-Armenta, 400 F.3d 1173,
1175 (9th Cir. 2005) (“The government moved to dismiss the
appeal” before a motions panel); United States v. Reyes-
Platero, 224 F.3d 1112, 1114 (9th Cir. 2000) (“The govern-
ment argues that Reyes-Platero waived these arguments by
unconditionally pleading guilty.”); United States v. Floyd, 108
F.3d 202, 203 (9th Cir. 1997) (“The government . . . moved
to dismiss the appeal for lack of jurisdiction because Floyd’s
plea was not a Rule 11(a)(2) conditional guilty plea.”); see
also United States v. Nunez, 223 F.3d 956, 958 (9th Cir. 2000)
(“[T]he government clearly preserved its defense by filing a
motion to dismiss Nunez’s appeal before filing its appellee’s
brief.”); United States v. Cortez, 973 F.2d 764, 766 (9th Cir.
1992) (“The United States argues that Cortez’ selective prose-
cution motion was waived both by Cortez’ failure to file the
claim before trial and his plea of guilty.”). Here, the govern-
ment not only failed to file a motion to dismiss, but also never
argued for a waiver of appeal in its brief. When “the govern-
ment fail[s] to raise this question in its brief or at oral argu-
ment, we decline to address it.” United States v. Lewis, 798
F.2d 1250 (9th Cir. 1986), amending United States v. Lewis,
787 F.2d 1318 (9th Cir. 1986).

   More importantly, we have previously held that “the gov-
ernment can waive the waiver” in cases where a defendant
appeals despite a guilty plea. United States v. Garcia-Lopez,
309 F.3d 1121 (9th Cir. 2002). In Garcia-Lopez, the govern-
ment properly moved to dismiss the appeal, and then explic-
itly waived the appeals bar in subsequent briefing. We held
that “even if a defendant has waived his right to appeal in a
plea agreement, we may nevertheless hear the appeal when
the government has expressly waived its right to assert the
defendant’s waiver.” Id.; see also id. at 1123 (the “govern-
ment ‘waived [its] waiver’ argument by failing to raise it.”)
11912              UNITED STATES v. CASTILLO
(quoting Fagan v. Washington, 942 F.2d 1155, 1157 (7th Cir.
1991) and citing United States v. Lewis, 798 F.2d 1250 (9th
Cir. 1986)) (alteration in original)). In that case, express
waiver was required because the government had preserved
its rights by filing a motion to dismiss the appeal. We rea-
soned that “[i]f the government can ‘waive waiver’ implicitly
by failing to assert it, certainly the government can do so
explicitly, as occurred here.” Id. (emphasis added).

   Here, however, no express waiver is necessary because the
government never asserted its right to rely on defendant’s
relinquishment of his appeal in the first place. Where the gov-
ernment has never asserted its rights, the issue is “whether the
government can waive the waiver. We [have] h[e]ld that it
can.” Id. at 1122. We rendered a similar decision in United
States v. Doe, 53 F.3d 1081 (9th Cir. 1995), holding that even
if the defendant had relinquished his appeal rights by failing
to appeal the imposition of supervised release until years after
his sentencing, the waiver would not bar appeal unless the
government so requested. “[Defendant’s] [w]aiver does not
divest the Court of jurisdiction it otherwise enjoys.” Id. at
1082.

   The majority distinguishes Garcia-Lopez on the grounds
that the defendant in that case sought to appeal a sentencing
determination that occurred after the plea, rather than the
issue of guilt itself. Maj. Op. at 11908 n.2. But Garcia-
Lopez’s plea agreement expressly relinquished appeals for
sentencing and guilt, provided the sentence fell within the
guidelines. Garcia-Lopez, 309 F.3d at 1122 (quoting the plea
agreement’s provisions that “defendant waives, to the full
extent of the law, any right to appeal or to collaterally attack
the conviction and sentence”). Garcia-Lopez was sentenced
within the guidelines, but appealed nonetheless. He did not
allege any breach of the agreement, nor did he attack its valid-
ity. His appeal did not fall within the “narrow exception to
waiver of the right to appeal” we have recognized in cases
“where the sentence imposed is not in accordance with the
                   UNITED STATES v. CASTILLO               11913
negotiated agreement.” United States v. Bolinger, 940 F.2d
478, 480 (9th Cir. 1991) (internal quotation marks omitted).
Regardless of whether his claims arose from actions com-
pleted before or after the agreement, Garcia-Lopez expressly
and effectively bargained away his appeal rights, just as
Jacobo has, but was permitted to take them up again after the
government declined to enforce the bar. We cannot distin-
guish his waiver from Jacobo’s.

   In fairness to the majority, I recognize that our cases are not
entirely consistent and that there is language in our cases stat-
ing that “[w]e do not have jurisdiction to decide” post-plea
appeals. United States v. Carrasco, 786 F.2d 1452, 1454 (9th
Cir. 1986). A true jurisdictional bar, of course, would not be
waivable. Our cases have not always been careful to explain
whether the bar to post-plea appeal is a jurisdictional bar, a
waiver, or some other kind of defense to appeal. Compare,
e.g., Lopez-Armenta, 400 F.3d at 1177 (discussing the plea
bar as waiver); United States v. Anglin, 215 F.3d 1064, 1066
(9th Cir. 2000) (discussing the appeals bar as a waiver and
providing that “[t]he scope of a knowing and voluntary
waiver is demonstrated by the express language of the plea
agreement”); Bolinger, 940 F.2d at 480 (noting that “a negoti-
ated plea of guilty” functions as “an express waiver of the
right to appeal”) with, e.g., Floyd, 108 F.3d at 204 (“Unless
Floyd’s plea conformed with [the Federal] Rule’s specific
requirements [for a conditional plea], we have no jurisdiction
to hear her appeal. Hence, we cannot reach the merits of her
conviction.”); Carrasco, 786 F.2d at 1453-54 (“We do not
have jurisdiction to decide Carrasco’s appeal . . . unless she
entered a valid conditional plea.”). We have sometimes mud-
dled the categories within the same opinion. See Reyes-
Platero, 224 F.3d at 1114 (“The government argues that
Reyes-Platero waived these arguments by unconditionally
pleading guilty. The implication of the government’s argu-
ment is that we do not have jurisdiction . . . .”). The confusion
11914                 UNITED STATES v. CASTILLO
in our cases calls for rehearing en banc, not a simple vote by
our panel.1

   Absent clarification from the court, sitting en banc, I
believe we are bound by Garcia-Lopez, and would hold that
the government has relinquished its objections to Jacobo’s
appeal. I would, therefore, reach the merits of the appeal. On
that score, I do not find Jacobo’s claims persuasive. He cannot
now appeal the admission of the firearms seized in a search
of his house because he stipulated, at pleading, that the search
was conducted pursuant to probable cause. See United States
v. Hernandez-Hernandez, 431 F.3d 1212, 1219 (9th Cir.
2005); see also United States v. Ferreboeuf, 632 F.2d 832,
836 (9th Cir. 1980) (“Unless a criminal defendant indicates
objection at the time the stipulation is made, he or she is ordi-
narily bound by such stipulation.”).

   Because Jacobo did not object to preindictment delay at
trial, we may only review this claim for plain error. Estrella
v. United States, 429 F.2d 397, 399 (9th Cir. 1970). There is
none here because Jacobo fails to even allege, much less
prove, “actual, non-speculative prejudice from the delay.”
United States v. Huntley, 976 F.2d 1287, 1290 (9th Cir. 1992).

   I would affirm the judgment of the district court.




  1
    The confusion in our own cases is not aided by the Supreme Court’s
decisions in Menna v. New York, 423 U.S. 61 (1975), or Tollett v. Hender-
son, 411 U.S. 258 (1973). See Maj. Op. at 11908-09. At most, those cases
suggest that “waiver” is not the appropriate term to describe when a defen-
dant bargains away his appeal rights. But nothing in those cases suggests
that relinquishment is jurisdictional. See Menna, 423 U.S. at 62 n.2; Tol-
lett, 411 U.S. at 266-67.
