Appeals from the United States District Court for the District of Nevada. D.C. No. CR-92-00227-PMP(R). D.C. No. CR-92-00227-PMP. Phillip M. Pro, District Judge, Presiding.
Before: Betty B. Fletcher, Cynthia Holcomb Hall and Charles Wiggins, Circuit Judges. Opinion by Judge Fletcher.
Defendants Walker and Michlin pled guilty to conspiracy, armed bank robbery, and use of a firearm during commission of a crime of violence. On appeal, they challenge the district court's denial of their motion to withdraw their guilty pleas, as well as various aspects of their sentences. We dismiss the appeals because we conclude that, pursuant to valid plea agreements, defendants waived their right to appeal.
On October 28, 1992, a federal grand jury returned a superseding indictment, charging Michlin and Walker with conspiracy (18 U.S.C. § 371), armed bank robbery (18 U.S.C. § 2113 (a) and (d)), and use of a firearm during and in relation to a crime of violence (18 U.S.C. § 924(c)). Defendants pled not guilty, but shortly before trial executed plea agreements and appeared before the court to change their pleas. Defendants then pled guilty to all three counts. Under the plea agreement, the government agreed not to seek an upward departure at sentencing, and defendants agreed not to appeal their convictions or sentences, so long as the sentences fell within the Sentencing Guidelines range as determined by the district court.
On April 7, 1993, before sentencing, defendants filed a joint pro se "Motion Questioning The Validity Of All Charges Made, Sentencing Guidelines Computation Pursuant To The Plea Agreement, And The Possibility Of Double Jeopardy." The district court struck the pro se motion on the grounds that defendants were represented by counsel, and referred the motion to defendants' attorneys. On May 3, 1993, defendants lodged a pro se "Motion To Terminate Counsel Due To Ineffectiveness, And For Lack Of Protecting Defendants' Best Interest." The district court ordered that the motion be taken up at the sentencing hearing.
At the hearing, held on May 14, 1993, the court discussed with defendants and with counsel defendants' unhappiness with their attorneys. The court invited further motions and affidavits, and on May 24, 1993, granted counsel's motion to withdraw and appointed new attorneys for defendants.
On July 30, 1993, both defendants filed motions to withdraw their guilty pleas. Walker argued that the indictment was multiplicitous, and that he had been denied effective assistance of counsel. Michlin argued that he did not enter his plea freely and voluntarily, and that he had been denied effective assistance of counsel. On August 24, 1993, the district court held an evidentiary hearing on the motions to withdraw, and, after finding that the motions lacked factual or legal basis, denied them both.
Defendants now appeal from the district court's denial of their motions to withdraw their guilty pleas. They also appeal various aspects of their sentences under the Sentencing Guidelines.
Before this case was heard by the present panel, the government moved to dismiss the appeals of both defendants pursuant to the waiver of appellate rights contained in the defendants' plea agreements. The waiver states as follows:
In consideration of this plea memorandum the defendant agrees to, and hereby does, voluntarily waive his right to appeal his conviction and/or the sentence ultimately imposed by the Court, if within the guideline range as determined by the Court.
In United States v. Gonzalez, 981 F.2d 1037 (9th Cir. 1992) (Gonzalez I), we held that a waiver of appellate rights in a plea agreement is not automatically enforceable if, on appeal, the defendant calls into question the validity of the waiver. Id. at 1038. We have also stated repeatedly that a waiver of appellate rights is enforceable only "if knowingly and voluntarily made." See United States v. DeSantiago-Martinez, 980 F.2d 582, 582 (9th Cir. 1992); United States v. Bolinger, 940 F.2d 478, 480 (9th Cir. 1991). Because Michlin argued in response to the government's motion ...