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United States v. Hayes

filed*fn*: June 24, 1991.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
WILLIAM ALFRED HAYES II, DEFENDANT-APPELLANT



Appeal from the United States District Court for the Southern District of California; Howard B. Turrentine, District Judge, Presiding; D.C. No. CR-89-0249-01-T.

Goodwin, Pregerson, Alarcon, Circuit Judges.

MEMORANDUM

William Hayes II appeals from the sentence he received after having pled guilty to one count of possession of methamphetamine with intent to distribute. He argues inter alia that the district court failed to comply with Rule 32(a)(1)(C) of the Federal Rules of Criminal Procedure. We agree. We vacate the sentence and remand for a new sentencing proceeding.

Rule 32(a)(1) of the Federal Rules of Criminal Procedure requires that before imposing sentence the district court shall:

(B) afford counsel for the defendant an opportunity to speak on behalf of the defendant; and

(C) address the defendant personally and determine if the defendant wishes to make a statement and to present any information in mitigation of the sentence.

In United States v. Navarro-Flores, 628 F.2d 1178 (9th Cir. 1980), we held that failure to comply with Rule 32(a)(1)(C) compels reversal and remand for resentencing. Id. at 1184. The district court in this matter failed to comply with Rule 32(a)(1)(C).

The Government asserts that the terms of Hayes' plea agreement included a waiver of the right to appeal from his sentence. A defendant may appeal from a judgment of conviction. Federal Rules of Appellate Procedure 4(b). A defendant who pleads guilty may appeal from the sentence imposed by the court. 18 U.S.C. ยง 3742. We have previously upheld an explicit waiver of the right to appeal from a sentence. United States v. Navarro-Botello, 912 F.2d 318, 319 (9th Cir. 1990).

In this matter, as part of the plea agreement, Hayes waived his "right to appeal." In doing so, Hayes gave up the right to raise on appeal any error that had occurred prior to the entry of his plea of guilty "even if he did not know exactly what the nature of these appeals might be." Navarro-Botello at 320. He did not, however, expressly waive his right to appeal from any unanticipated procedural errors that might subsequently occur during the sentencing proceedings.

The sentence is VACATED and this matter is REMANDED with directions to conduct a new ...


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