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\deflang1033\pard\plain\f2\fs17 No. 94-1902
\par 
\par In The Supreme Court of The United States
\par 
\par OCTOBER TERM, 1995
\par 
\par FRANCISCO ROBERTO FAUSTO-RENDON, PETITIONER
\par 
\par v.
\par 
\par UNITED STATES OF AMERICA
\par 
\par ON PETITION FOR A WRIT OF CERTIORARI 
\par TO THE UNITED STATES COURT OF APPEALS
\par FOR THE NINTH CIRCUIT
\par 
\par BRIEF FOR THE UNITED STATES IN OPPOSITION
\par 
\par DREW S. DAYS, III
\par Solicitor General
\par 
\par JO ANN HARRIS 
\par Assistant Attorney General
\par 
\par DANIEL S. GOODMAN
\par Attorney
\par 
\par Department of Justice
\par Washington, D.C. 20530
\par (202)514-2217
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par   QUESTION PRESENTED
\par 
\par Whether petitioner waived his right to appeal his
\par in his plea agreement.
\par 
\par (I)
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par TABLE OF CONTENTS
\par 
\par Page
\par 
\par Opinion below  . . . . 1
\par Jurisdiction  . . . . 1
\par Statement  . . . . 1
\par Argument  . . . . 3
\par Conclusion  . . . . 6
\par     
\par TABLE OF AUTHORITIES
\par 
\par Cases:
\par 
\par United States v. Attar, 38 F.3d 727(4th Cir.1994),
\par cert. denied. l15 S. Ct. 1957 (1995)  . . . . 3, 5
\par United States v. Bushert, 997 F.2d 1343(11th Cir.
\par 1993), cert. denied, 115 S. Ct. 652 (1994)  . . . . 3, 5
\par United States v. Melancon, 972 F.2d 566(5th Cir.
\par  1992)  . . . . 3
\par United States v. Mezzanatto, 115S. Ct. 797 (1995)  . . . . 4
\par United States v. Navarro-Botello, 912 F.2d 318
\par (9th Cir. 1990), cert. denied, 503 U.S. 942(1992)  . . . . 4, 5
\par United States v. Rivera, 971 F.2d 876(2d Cir. 1992)  . . . . 3
\par United States v. Rutan, 956 F.2d 827(8th Cir. 1992) . . . . 3-4, 5
\par United States v. Schmidt, 47 F.3d 188(7th Cir. 1995) . . . . 3, 5
\par 
\par Statutes and rules:
\par 
\par 21 U.S.C. 841(a)(1)  . . . . 2
\par 21 U. S.C. 841(b)(l)(B)(vii)  . . . . 2
\par Fed. R. Crim. P.:
\par Rule 11(e)(6)  . . . . 4
\par Rule 35(c)  . . . . 2-3, 4
\par Fed. R. Evid. 410  . . . . 4 
\par 
\par (III)
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par In the Supreme Court of the United States
\par 
\par OCTOBER TERM, 1995
\par 
\par No. 94-1902
\par 
\par FRANCISCO ROBERTO FAUSTO-RENDON, PETITIONER
\par 
\par v.
\par 
\par UNITED STATES OF AMERICA
\par 
\par ON PETITION FOR A WRIT OF CERTIORARI
\par TO THE UNITED STATES COURT OF APPEALS
\par FOR THE NINTH CIRCUIT
\par 
\par BRIEF FOR THE UNITED STATES IN OPPOSITION
\par 
\par OPINION BELOW
\par 
\par The order of the court of appeals (Pet. App. 1A-2A)
\par is unpublished, but the judgment is noted at 46 F.3d
\par 1146 (Table).
\par 
\par JURISDICTION
\par 
\par The judgment of the court of appeals was entered on
\par January 30, 1995. The petition for a writ of certiorari
\par was filed on May 1, 1995 (a Monday). The jurisdiction
\par of this Court is invoked under 28 U.S.C. 1254(1).
\par 
\par STATEMENT
\par 
\par Petitioner pleaded guilty in the United States
\par District Court for the District of Arizona to pos-
\par 
\par  (1)
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 2
\par 
\par session of marijuana with intent to distribute it, in
\par violation of 21 U.S.C. 841(a)(l). On May 31, 1994, he
\par was sentenced to 36 months' imprisonment. Three
\par weeks later, the government filed a motion to correct
\par petitioner's sentence, The district court granted the
\par motion and resentenced petitioner to 60 months'
\par imprisonment. The court of appeals dismissed peti-
\par tioner's appeal. Pet. App. 2A.
\par 1. Petitioner pleaded guilty to possession of
\par approximately 985 pounds of marijuana with intent to
\par distribute it. The plea agreement contained a 60-
\par month cap on incarceration, and petitioner agreed to
\par waive "all rights to appeal." Plea Agreement 11113, 5.
\par Under 21 U.S.C. 841(b)(l)(B)(vii), the mandatory
\par minimum sentence for a violation of Section 841(a)(l)
\par involving more than 100 kilograms of marijuana is 60
\par months' imprisonment. The government did not move
\par for departure below the statutory minimum. Never-
\par theless, on May 31, 1994, the district court sentenced
\par petitioner to 36 months' imprisonment, without mak-
\par ing any findings to support a departure below the
\par statutory minimum. Gov't C.A. Br. 4,8.
\par 2. On June 22, 1994, the government filed a motion
\par to correct petitioner's sentence, pointing out that the
\par statute required a 60-month minimum sentence.
\par After holding a hearing on the government's motion,
\par the district court granted the motion and, on August
\par 4, 1994, issued an amended judgment imposing a
\par sentence of 60 months' imprisonment.  Gov't C.A.
\par Br. 4.
\par 3. On appeal, petitioner claimed that the district
\par court erred in granting the government's motion to
\par correct his sentence because that motion was not
\par filed within seven days of the imposition of the
\par original sentence, as required by Fed. R. Crim. P.
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 3
\par 
\par 35(c). Pet. App. 2A. In response, the government
\par argued that the court of appeals lacked jurisdiction
\par because petitioner had waived his right to appeal in
\par his plea agreement. Gov't C.A. Br. 6.
\par The court of appeals agreed with the government
\par that the express language of the plea agreement
\par waived petitioner's right to appeal his sentence, and
\par the court dismissed petitioner's appeal without
\par reaching the merits of his claim under Rule 35(c).
\par Pet. App. 2A.
\par 
\par ARGUMENT
\par 
\par 1. Petitioner contends (Pet. 5) that he agreed to
\par waive his appeal rights only with respect to the
\par substantive issues in the indictment. He claims that
\par the resentencing was an unforeseeable subsequent
\par legal proceeding not contemplated by the plea
\par agreement. That argument is precluded by the broad
\par language of petitioner's appeal waiver. Petitioner
\par cites no authority for the proposition that his agree-
\par ment "to waive all rights to appeal" did not encompass
\par the right to appeal an amended sentence.  Plea
\par Agreement Par. 5.
\par The courts of appeals that have considered the
\par validity of sentence appeal waivers have uniformly
\par held that such waivers are valid so long as they are
\par knowing and voluntary.  See United States v.
\par Schmidt, 47 F.3d 188, 190 (7th Cir. 1995); United
\par States v. Attar, 38 F.3d 727, 731 (4th Cir. 1994), cert.
\par denied, 115 S. Ct. 1957 (1995); United States v.
\par Bushert, 997 F.2d 1343, 1350 (11th Cir. 1993), cert.
\par denied, 115 S. Ct. 652 (1994); United States v.
\par Melancon, 972 F.2d 566, 567-568 (5th Cir. 1992);
\par United States v. Rivers, 971 F.2d 876, 896 (2d Cir.
\par 1992); United States v. Rutan, 956 F.2d 827, 829-830
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 4
\par 
\par (8th Cir. 1992); United States v. Navarro-Botello, 912
\par F.2d 318, 321-32%2 (9th Cir. 1990), cert. denied, 503 U.S.
\par 942 (1992). Petitioner has not advanced a claim
\par that his appeal waiver was either unknowing or
\par involuntary.
\par 2. Because petitioner waived all rights to appeal,
\par the court of appeals did not reach the merits of
\par petitioner's contention that the district court lacked
\par power to correct his sentence after the time allowed
\par in Fed. R. Crim. P. 35(c). Petitioner now argues that
\par the court of appeals' failure to review the merits of
\par his claim that the district court lacked jurisdiction
\par violates his due process rights. Pet. 4-5. There is,
\par however, no constitutional bar to petitioner's volun-
\par tary surrender of his statutory right to obtain
\par appellate review of particular claims that he might
\par have had in this case.  See United States v,
\par Mezzanatto, 115 S. Ct. 797, 801-$02 (1995) (absent an
\par "affirmative indication of Congress' intent to
\par preclude waiver" statutory rights are "subject to
\par waiver by voluntary agreement of the parties";
\par upholding defendant's waiver of rights under Fed. R.
\par Evid. 410 and Fed. R. Crim. P. 11(e)(6)).
\par Petitioner argues that, by signing the plea
\par agreement containing the waiver of all rights to
\par appeal, he did not thereby waive his right to appeal
\par with respect to future, "unforeseeable" legal pro-
\par ceedings. Pet. 5. Petitioner's inability to anticipate
\par the specific grounds on which he might later wish to
\par appeal, however, is not a reason to invalidate his
\par waiver. See Navarro-Botello, 912 F.2d at 320 (fact
\par that defendant did not know the nature of possible
\par appeals when he signed plea agreement does not
\par render agreement involuntary); Rutan, 956 F.2d at
\par 830 (rejecting defendant's argument that he could not
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 5
\par 
\par waive an unknown right). Petitioner executed his
\par waiver knowing that sentencing proceedings would
\par follow, and he could readily foresee that procedural
\par errors might occur in them. His waiver of all rights
\par to appeal necessarily extended to such potential
\par appellate issues.
\par The courts of appeals have recognized certain cir-
\par cumstances in which defendants-who have signed
\par waivers of rights to appeal retain the right to
\par appellate review on limited grounds. See, e.g., Attar,
\par 38 F.3d at 732 (examining scope of waiver-of-appeal-
\par rights provision). This case does not present any of
\par those situations: Petitioner was not "sentenced
\par entirely at the whim of the district court ," or in
\par excess of the maximum penalty provided by statute,
\par ibid.; nor was a sentence imposed in violation of
\par certain fundamental and immutable constitutional
\par guarantees, ibid.; Bushert, 997 F.2d at 1350 n. 18; nor
\par was a sentence imposed that violated the negotiated
\par agreement, Navarro-Botello, 912 F.2d at 321;
\par Schmidt, 47 F.3d at 190 (waiver would not prevent an
\par appeal where sentence imposed is not in accordance
\par with negotiated agreement); Rutan, 956 F.2d at 829-
\par 830 (same). Rather, petitioner was sentenced in pre-
\par cise accord with the terms of his plea agreement.
\par Indeed, the applicable statutory mandatory minimum
\par sentencing provision required the sentence he
\par received.
\par In sum, because petitioner waived his right to
\par appeal knowingly and voluntarily, and because there
\par was no reason not to honor that waiver, the court of
\par appeals correctly dismissed petitioner's appeal.
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 6
\par 
\par CONCLUSION
\par 
\par The petition for a writ of certiorari should be
\par denied.
\par 
\par Respectfully submitted.
\par 
\par DREW S. DAYS, III
\par Solicitor General
\par 
\par JO ANN HARRIS
\par Assistant Attorney General
\par 
\par DANIEL S. GOODMAN
\par Attorney
\par 
\par JULY 1995
\par 
\par 
\par }