Unreported / Non-Citable
Background
Lance L. Bermudez pleaded guilty to racketeering conspiracy under 18 U.S.C. § 1962(d), conspiracy to distribute controlled substances under 21 U.S.C. §§ 841(a)(1) and 846, and Hobbs Act robbery under 18 U.S.C. §§ 2 and 1951. The district court sentenced him to an aggregate term of 360 months’ imprisonment. Bermudez’s plea agreement included an appeal waiver covering his conviction and any sentence within the Guidelines range as determined by the court, but he retained the right to appeal any portion of the sentence exceeding that range. On appeal, Bermudez’s counsel filed an Anders brief asserting no non-frivolous grounds for appeal, and Bermudez did not file a pro se supplemental brief.
The Court’s Holding
The Ninth Circuit conducted an independent review of the record pursuant to Penson v. Ohio and found no non-frivolous issue regarding the enforceability of the appeal waiver. The court also found no non-frivolous issue concerning the portion of the sentence exceeding the post-departure Guidelines range, noting that any ambiguity in the waiver’s reference to “the guideline range determined by the Court” was resolved against the government but did not yield a meritorious claim. The court granted counsel’s motion to withdraw, affirmed the conviction and the portion of the sentence within the Guidelines range, and dismissed the appeal as to the remainder.
Key Takeaways
- The appeal waiver in Bermudez’s plea agreement was enforceable and barred review of his conviction and sentence within the Guidelines range.
- The court independently reviewed the record under Penson v. Ohio and found no non-frivolous issues, including regarding the sentence exceeding the post-departure range.
- Ambiguity in the appeal waiver’s reference to the applicable guideline range (pre- vs. post-departure) was construed against the government but did not create a non-frivolous appellate issue.
- Counsel’s Anders motion to withdraw was granted.
- The judgment was affirmed in part and dismissed in part.
Why It Matters
This unpublished memorandum disposition illustrates the Ninth Circuit’s application of Anders procedures and its enforcement of appeal waivers in plea agreements. The court reaffirmed that an appeal waiver encompassing the “guideline range determined by the Court” is enforceable and that any ambiguity regarding whether that phrase refers to the pre- or post-departure range is resolved against the government. However, even under the defendant-favorable interpretation, the court’s independent review found no non-frivolous argument that the sentence exceeded the post-departure range. The decision underscores the limited scope of appellate review when a valid appeal waiver exists and counsel identifies no colorable claims. The disposition is unpublished and resulted from the Anders procedure, in which counsel reported no nonfrivolous issue and the panel independently reviewed the record. The court construed possible ambiguity in the waiver against the government, yet still found no nonfrivolous issue concerning the sentence above the post-departure range. The mixed disposition tracks the waiver’s scope. The panel affirmed the conviction and the portion of the sentence within the covered Guidelines range, while dismissing the appeal as to the remainder after finding no nonfrivolous issue within the retained appellate right. Practitioners reviewing a plea agreement should identify precisely which sentencing components are waived and should not assume that a retained right guarantees merits review when the record supplies no arguable claim. Careful drafting and review of the waiver remain essential at the plea stage.