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Issue: knowing and voluntary waiverMO ↗
Issue: plea agreement violationWA ↗
61.8 score
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cited 2× by 2 distinct cases ·
…while we do not hold that petitioner's waiver categorically forecloses him from bringing any section 2255 proceeding, such as a claim of ineffective assistance of counsel or involuntariness of waiver. . .the question of the degree of his culpability is an issue clearly contempla…
at p. 1014
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discussed
Cited "but see"
United States v. Tayman
But see United States v. Abarca, 985 F.2d 1012 (9th Cir.) (defendant who waives right to appeal may bring § 2255 claims only for ineffective assistance of counsel or involuntariness of the waiver), cert. denied, — U.S. -, 113 S.Ct. 2980 , 125 L.Ed.2d 677 (1993); United States v. Kuhl, 816 F.Supp. 623, 631-32 (S.D.Cal.1993). 7 .
discussed
Cited as authority (rule)
United States of America v. Jesus Vasquez Cantu
United States v. Pruitt, 32 F.3d 431, 433 (9th Cir. 1994); United 19 States v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1993). 20 In this case, the record reflects that Defendant’s plea agreement was knowingly and 21 voluntarily entered and Defendant makes no persuasive showing otherwise.
discussed
Cited as authority (rule)
United States of America v. David Williams Haas
United States v. Pruitt, 32 F.3d 431, 433 (9th Cir. 1994); United 24 States v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1993). 25 In this case, the record reflects that Defendant’s plea agreement was knowingly and 26 voluntarily entered and Defendant makes no persuasive showing otherwise.
discussed
Cited as authority (rule)
Favela-Astorga v. United States
(2×)
United States v. Pruitt, 32 F.3d 431, 433 (9th - 2 - 1 Cir. 1994); United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1992) (citing Abney v. 2 United States, 431 U.S. 651, 656 (1977) ("The right of appeal, as we presently know it in 3 criminal cases, is purely a creature of statute....")).
discussed
Cited as authority (rule)
Knight v. United States
See Washington v. Lampert, 422 F.3d 864, 871 (9th Cir. 2005) 28 (holding that a plea agreement that waives the right to file a federal habeas petition pursuant 1 to § 2254 is unenforceable with respect to an ineffective assistance of counsel claim that 2 challenges the voluntariness of the waiver); United States v. Pruitt, 32 F.3d 431, 433 (9th 3 Cir. 1994) (expressing doubt that a plea agreement could waive a claim that counsel 4 erroneously induced a defendant to plead guilty or accept a particular plea bargain); United 5 States v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1992) (expressly decl…
cited
Cited as authority (rule)
Keefer v. United States
United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir.), cert. denied, 508 U.S. 979 (1993).
discussed
Cited as authority (rule)
McArthur v. Alameda County Public Defender's Office
Cal. Apr. 20, 2010) (quoting Johnson v. Zerbst, 304 U.S. 458 , 26 464 (1938); United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1993)); see also United States 27 v. Hamilton, 391 F.3d 1066, 1071 (9th Cir. 2004) (“Waiver is the intentional relinquishment or 1 U.S. App. LEXIS 13944 , at *5 (9th Cir. June 11, 1997) (“[D]ue process rights can be waived if the 2 waiver is knowing and voluntary.
discussed
Cited as authority (rule)
Catoggio v. United States
Whatever linguistic distinction may be made between an ‘appeal’ and a § 2255 petition, we are loathe to countenance so obvious a circumvention of a plea agreement.”); United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1993) (“While we do not hold that Abarca’s [appellate] waiver categorically forecloses him from bringing any section 2255 proceeding, such as a claim of ineffective assistance of counsel or involuntariness of waiver, the question of the degree of his culpability is an issue clearly contemplated by, and subject to, his plea agreement waiver. (cleaned up)); Ware v. U…
cited
Cited as authority (rule)
Alvarado-Coronado v. United States
United States v. 18 Abarca, 985 F.2d 1012, 1014 (9th Cir. 1993).
cited
Cited as authority (rule)
Cuthbert v. United States
United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir.), cert. denied, 508 U.S. 979 (1993).
discussed
Cited as authority (rule)
Martensen v. United States
See, e.g., U.S. v. Navarro-Botello, 912 F.2d 318, 321 (9th Cir. 1990) (“If it is not a due process violation for a defendant to waive constitutional rights as part of a plea bargain, then a defendant’s waiver of a nonconstitutional right, such as the statutory right to appeal a sentence, is also waivable.”) (cleaned up); U.S. v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1993) (holding defendant waived right to bring § 2255 motion).
discussed
Cited as authority (rule)
Chipman v. United States
United States v. Abarca, 985 F.2d 1012, 1014 (9th 22 Cir. 1993). 1 Further, the Ninth Circuit has expressed agreement with other circuits that a 2 petitioner’s collateral challenge resting on allegations that directly contradict the 3 petitioner’s plea statements ordinarily must fail.
cited
Cited as authority (rule)
Lozon v. United States
United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir.), cert. denied, 508 U.S. 979 (1993).
cited
Cited as authority (rule)
Hughes v. United States
Dkt. #5 at 17 10 (citing, inter alia, United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1993); United 18 19 States v. Goodall, 15 F.4th 987 , 993-97 (9th Cir. 2021)).
discussed
Cited as authority (rule)
United States v. Tony Jackson
United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1993); see Fox v. Johnson, 832 F.3d 978, 989 (9th Cir. 2016) (“We agree that [defendant] had a constitutional right to enforce the plea agreement, and that a waiver of a constitutional right must be knowing and voluntary.” (internal citations omitted)).
discussed
Cited as authority (rule)
Lee v. United States
United States v. Pruitt, 32 F.3d 431, 433 (9th Cir. 1994); United 22 States v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1993). 23 In this case, the record reflects that Petitioner’s plea agreement was voluntarily 24 entered and she makes no claim otherwise.
discussed
Cited as authority (rule)
Lopez-Huerta v. United States
Navarro-Botello, 912 F.2d 318, 319 (9th Cir. 1996). □ 7 ||(holding a waiver of appeal is enforceable as part ofa negotiated plea agreement if it is 8 || made voluntarily and knowingly); United States v. Abarca, 985 F.2d 1012, 1013 (9th Cir. 9 || 1993) (same with respect to collateral attack).
discussed
Cited as authority (rule)
Frater v. United States
United States v. Pruitt, 32 F.3d 431, 433 (9th Cir. 2 1994); United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1993); see also United States 3 v. Charles, 581 F.3d 927, 931 (9th Cir. 2009) (a “defendant’s waiver of his appellate rights 4 is enforceable if (1) the language of the waiver encompasses his right to appeal on the 5 grounds raised, and (2) the waiver is knowingly and voluntarily made” (internal quotation 6 omitted)). 7 Frater objects to Judge Burns’s finding that he waived his right to bring a § 2255 8 motion, arguing that his plea agreement was “non-binding” becaus…
discussed
Cited as authority (rule)
Ruelas v. United States
(2×)
United States v. Pruitt, 32 F.3d 7 431, 433 (9th Cir. 1994); United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1992). 8 The only claims that cannot be waived are claims that the waiver itself was involuntary or 9 that ineffective assistance of counsel rendered the waiver involuntary.
discussed
Cited as authority (rule)
Vitela-Aragon v. United States
See Washington v. Lampert, 422 F.3d 864, 871 (9th Cir. 2005) (holding that a 24 plea agreement that waives the right to file a federal habeas petition pursuant to § 2254 is 25 unenforceable with respect to an ineffective assistance of counsel claim that challenges the 26 voluntariness of the waiver); United States v. Pruitt, 32 F.3d 431, 433 (9th Cir. 1994) 27 (expressing doubt that a plea agreement could waive a claim that counsel erroneously 28 induced a defendant to plead guilty or accept a particular plea bargain); United States v. 1 Abarca, 985 F.2d 1012, 1014 (9th Cir. 1992) (expressly …
discussed
Cited as authority (rule)
Lopez Estrada v. United States
See United 21 States v. Rahman, 642 F.3d 1257, 1259 (9th Cir. 2011); United States v. Abarca, 22 985 F.2d 1012, 1014 (9th Cir. 1993). 23 / / / 24 / / / 25 26 27 1 In response to this and the following questions, the transcript does not distinguish among the three Defendants.
discussed
Cited as authority (rule)
Jennings v. United States
(2×)
United States v. Pruitt, 32 F.3d 24 431, 433 (9th Cir. 1994); United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1992). 25 The only claims that cannot be waived are claims that the waiver itself was involuntary or 26 that ineffective assistance of counsel rendered the waiver involuntary.
cited
Cited as authority (rule)
Rivera Casanova v. United States
United States v. Abarca, 13 985 F.2d 1012, 1014 (9th Cir. 1993). 14 III.
discussed
Cited as authority (rule)
Flores-Ramirez v. United States
The right to collaterally attack a sentence pursuant to 28 U.S.C. § 2255 17 is statutory in nature, and a defendant may therefore waive the right to file a § 2255 petition. 18 See United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1993) (holding that, by entering 19 plea agreement whereby defendant waived right to appeal his sentence, defendant 20 relinquished right to directly or collaterally attack his sentence on the ground of newly 21 discovered exculpatory evidence).
discussed
Cited as authority (rule)
Rocha-Chacon v. United States
United States v. Pruitt, 32 F.3d 431 , 433 2 (9th Cir. 1994); United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1993); see also 3 United States. v. Charles, 581 F.3d 927, 931 (9th Cir. 2009) (a “defendant’s waiver of his 4 appellate rights is enforceable if (1) the language of the waiver encompasses his right to 5 appeal on the grounds raised, and (2) the waiver is knowingly and voluntarily made” 6 (internal quotation omitted)). 7 The Court finds that Movant waived her right to collaterally attack her conviction 8 and sentence in a 28 U.S.C. § 2255 Motion.
discussed
Cited as authority (rule)
United States v. Lloyd Myers
United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1993) (noting that an enforceable waiver requires “[a] knowing and voluntary waiver of a statutory right”).
cited
Cited as authority (rule)
United States v. Lloyd Myers
United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir.1993) (noting that an enforceable waiver requires “[a] knowing and voluntary waiver of a statutory right”)..
cited
Cited as authority (rule)
State v. Frawley
Jones v. United States, 167 F.3d 1142, 1145 (7th Cir. 1999); United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1993) (citing Marin, 961 F.2d at 496 ).
cited
Cited as authority (rule)
State v. Frawley
Jones v. United States, 167 F.3d 1142, 1145 (7th Cir. 1999); United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1993) (citing Marin, 961 F.2d at 496 ).
cited
Cited as authority (rule)
Ulloa-Navarro v. United States
United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir.1993).
cited
Cited as authority (rule)
United States v. John McTiernan
United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir.1993).
discussed
Cited as authority (rule)
United States v. Nathanson
The right to bring a collateral attack through a § 2255 petition is statutory and “[a] knowing and voluntary waiver of a statutory right is enforceable'.” United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir.1993); see also United States v. Pruitt, 32 F.3d 431, 433 (9th Cir.1994) (“[A] defendant may waive the statutory right to file a § 2255 petition challenging the length of his sentence.”).
discussed
Cited as authority (rule)
Cooper v. State
See, e.g., DeRoo v. United States, 223 F.3d 919, 923 (8th Cir.2000) (noting that the Eighth Circuit previously had upheld a defendant’s plea agreement promise to waive post-conviction challenges); Watson v. United States, 165 F.3d 486, 489 (6th Cir.1999) (“[A] defendant’s informed and voluntary waiver of the right to collaterally attack a sentence in a plea agreement bars such relief.”); United States, v. Wilkes, 20 F.3d 651, 653 (5th Cir.1994) (“[A] defendant can waive his right to appeal as part of a plea agreement if the waiver is informed and voluntary.”); and United States v. …
discussed
Cited as authority (rule)
Alicia Shayne Lovera v. State
Va. 1998) (holding, even where a defendant has waived his statutory right to bring a § 2255 motion, he may nonetheless raise claims of ineffective assistance of counsel and the voluntariness of the guilty plea) (citing United States v. Wilkes, 20 F.3d 651 , 652- 653 (5 th Cir. 1994); United States v. Pruitt, 32 F.3d 431, 432-433 (9 th Cir. 1994); United States v. Abarca, 985 F.2d 1012, 1014 (9 th Cir. ), cert. denied, 508 U.S. 979 , 113 S.Ct. 2980 (1993)).
discussed
Cited as authority (rule)
Schnepf v. United States
Thus, even in circumstances such as the present case, where petitioner signed a written plea agreement waiving his right to file for post-conviction relief, petitioner may nevertheless petition the court for post-conviction relief based on the ineffective assistance of counsel, but only “when the defendant’s claims of ineffective assistance relate to the negotiation of, and entry into, the plea agreement and waiver.” DeRoo, 223 F.3d at 924 ; see United States v. White, 307 F.3d 336, 343 (5th Cir.2002) (“We will follow this wealth of authority and hold that an ineffective assistance of …
cited
Cited as authority (rule)
United States v. Leniear
United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir.1993).
cited
Cited as authority (rule)
United States v. Christopher Leniear
United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1993).
cited
Cited as authority (rule)
United States v. Leniear
United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1993).
discussed
Cited as authority (rule)
In Re Renato Acosta, Movant
While we do not hold that [a defendant’s] waiver categorically forecloses him from bringing any section 2255 proceeding, such as a claim of ineffective assistance of counsel or involuntariness of waiver, the question of the degree of his culpability is an issue clearly contemplated by, and subject to, his plea agreement.”) (quoting United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir.1993)).
discussed
Cited as authority (rule)
In Re: Renato Acosta v.
While we do not hold that [a defendant’s] waiver categorically forecloses him from bringing any section 2255 proceeding, such as a claim of ineffective assistance of counsel or involuntariness of waiver, the question of the degree of his culpability is an issue clearly contemplated by, and subject to, his plea agreement.”) (quoting United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1993)).
discussed
Cited as authority (rule)
United States v. Edgar Sterling Lemaster
See Garcia-Santos v. United States, 273 F.3d 506, 509 (2nd Cir.2001); United States v. Cockerham, 237 F.3d 1179, 1183 (10th Cir.2001); DeRoo v. United States, 223 F.3d 919, 923 (8th Cir.2000); Watson v. United States, 165 F.3d 486, 489 (6th Cir.1999); Jones v. United States, 167 F.3d 1142, 1145 (7th Cir.1999); United States v. Wilkes, 20 F.3d 651, 653 (5th Cir.1994); United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir.1993).
discussed
Cited as authority (rule)
United States v. Mascoto
See United States v. Johnson, 67 F.3d 200, 202 (9th Cir.1995) (rejecting argument that waiver could not encompass appeal of alleged sentencing error premised on a law not yet enacted at time of waiver); United States v. Abarca, 985 F.2d 1012, 1013 (9th Cir.1993) (dismissing appeal where right was waived in plea agreement, despite newly discovered exculpatory evidence regarding the extent of involvement in crimes of conviction).
discussed
Cited as authority (rule)
United States v. John Doe
While the standard for a waiver of fundamental rights may be more exacting than for other rights, see, e.g., New York v. Hill, 528 U.S. 110, 114-15 , 120 S.Ct. 659 , 145 L.Ed.2d 560 (2000), a waiver of a statutory right must still be “knowing and voluntary.” United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir.1993).
discussed
Cited as authority (rule)
United States v. Gerardo Alfonso Reyes & Raul Reyes
See United States v. Davis, 121 F.3d 335, 337-38 (7th Cir.1997) (applying the waiver requirements of Johnson v. Zerbst, 304 U.S. 458, 464 , 58 S.Ct. 1019 , 82 L.Ed. 1461 (1938), to a defendant’s waiver of the right to withdraw his plea); cf. United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir.1993) (noting that a “knowing and voluntary waiver of a statutory right is enforceable”).
discussed
Cited as authority (rule)
United States v. Collette
See United States v. Nunez, 223 F.3d 956, 958 (9th Cir.), cert. denied, U.S., — U.S. -, 122 S.Ct. 272 , 151 L.Ed.2d 199 (2001); United States v. Vences, 169 F.3d 611, 613 (9th Cir.1999); United States v. Martinez, 143 F.3d 1266, 1270-71 (9th Cir.1998); United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir.1993).
discussed
Cited as authority (rule)
Pena v. United States
See United States v. Cockerham, 237 F.3d 1179 (10th Cir.2001); DeRoo v. United States, 223 F.3d 919 (8th Cir.2000); Watson v. United States, 165 F.3d 486 (6th Cir.1999); Jones v. United States, 167 F.3d 1142 (7th Cir.1999); United States v. Wilkes, 20 F.3d 651 (5th Cir. 1994) (per curiam); United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir.1993).
discussed
Cited as authority (rule)
Boglin v. State
See United States v. Henderson, 72 F.3d 463, 465 (5th Cir.1995) (`dismissal of an appeal based on a waiver in the plea agreement is inappropriate where the defendant's motion to withdraw the plea incorporates a claim that the plea agreement generally and the defendant's waiver of appeal specifically, were tainted by ineffective assistance of counsel'); United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir.), cert. denied, 508 U.S. 979 , 113 S.Ct. 2980 , 125 L.Ed.2d 677 (1993) (stating waiver does not `categorically' foreclose defendant's right to bring motion under section 2255 for ineffective…
discussed
Cited as authority (rule)
United States v. Carmichael Cannady, A/K/A Stokey
(2×)
See Garcia-Santos v. United States, 273 F.3d 506, 509 (2nd Cir. 2001) (per curiam); United States v. Cockerham, 237 F.3d 1179, 1183 (10th Cir.2001), cert. denied, ___ U.S. ___, 122 S.Ct. 821 , 151 L.Ed.2d 703 (2002); DeRoo v. United States, 223 F.3d 919, 923 (8th Cir.2000); Watson v. United States, 165 F.3d 486, 488-89 (6th Cir. 1999); United States v. Wilkes, 20 F.3d 651, 653 (5th Cir.1994) (per curiam); United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir.1993); see also United States v. Brown, 232 F.3d 399, 405-06 (4th Cir.2000) (in case where plea agreement included waiver of direct appea…
discussed
Cited as authority (rule)
United States v. Moon
(2×)
United States v. Cockerham, 237 F.3d 1179, 1181-82 (10th Cir.2001), ce rt. denied, — U.S. -, 122 S.Ct. 821 , — L.Ed.2d - (2002); DeRoo v. United States, 223 F.3d 919, 923 (8th Cir.2000); Mason v. United States, 211 F.3d 1065, 1069 (7th Cir.2000), cert. denied, 531 U.S. 1175 , 121 S.Ct. 1148 , 148 L.Ed.2d 1010 (2001); Watson v. United States, 165 F.3d 486, 488-489 (6th Cir.1999); United States v. Wilkes, 20 F.3d 651, 653 (5th Cir.1994); United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir.), cert. denied, 508 U.S. 979 , 113 S.Ct. 2980 , 125 L.Ed.2d 677 (1993).
discussed
Cited as authority (rule)
Butler v. United States
United States v. Cockerham, 237 F.3d 1179, 1181-82 (10th Cir.2001); DeRoo v. United States, 223 F.3d 919, 923 (8th Cir.2000); Mason v. United States, 211 F.3d 1065, 1069 (7th Cir.2000), cert. denied, 531 U.S. 1175 , 121 S.Ct. 1148 , 148 L.Ed.2d 1010 (2001); Watson v. United States, 165 F.3d 486, 488-89 (6th Cir. 1999); United States v. Wilkes, 20 F.3d 651, 653 (5th Cir.1994); United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir.), cert. denied, 508 U.S. 979 , 113 S.Ct. 2980 , 125 L.Ed.2d 677 (1993).
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellee,
v.
Rodolfo Espinoza ABARCA, Defendant-Appellant; UNITED STATES of America, Plaintiff-Appellee, v. Espinoza Rodolfo ABARCA, Defendant-Appellant
v.
Rodolfo Espinoza ABARCA, Defendant-Appellant; UNITED STATES of America, Plaintiff-Appellee, v. Espinoza Rodolfo ABARCA, Defendant-Appellant
91-50828, 92-55482.
Court of Appeals for the Ninth Circuit.
Feb 5, 1993.
985 F.2d 1012
93 Cal. Daily Op. Serv. 915
1993 U.S. App. LEXIS 1811
John Lanahan, Asst. Federal Public Defender, San Diego, CA, for defendant-appellant., Cynthia Bashant, Asst. U.S. Atty., San Diego, CA, for plaintiff-appellee.
Canby, Boochever, Thompson.
Cited by 145 opinions | Published
CANBY, Circuit Judge:
Rodolfo Abarca-Espinoza [1] brings a consolidated appeal challenging (1) the seven-year sentence the district court imposed upon his plea of guilty to possession of cocaine with intent to distribute, and (2) the district court’s denial of his motion, under 28 U.S.C. § 2255, for modification of his sentence.
We affirm.
DISCUSSION
Abarca contends that the district court erred in refusing to hold an evidentiary hearing in which Abarca would present newly discovered partially exculpatory evidence entitling him to modification of his sentence. In his plea agreement, Abarca waived the right to appeal “any pretrial issues or any sentencing issues” on condition that he receive a sentence that did not exceed the applicable guideline range. The district court sentenced Abarca to eighty-four months, departing downward from the applicable guideline range of 121 to 151 months. In both his direct appeal, under 18 U.S.C. § 3742, [2] and his collateral action, under 28 U.S.C. § 2255, [3] the gravamen of Abarca’s complaint is that he is entitled to resentencing because newly discovered exculpatory evidence of the extent of his involvement in the crimes undermines the factual basis of the trial court’s sentencing decision. This claim constitutes a “sentencing issue,” and Abarca’s waiver forecloses him from raising it on appeal under 18 U.S.C. § 3742. United States v. Navarro-Botello, 912 F.2d 318, 321-22 (9th Cir.1990), ce rt. denied, — U.S. -, 112 S.Ct. 1488, 117 L.Ed.2d 629 (1992).
[*1014] In addition, Abarca may not assert the issue in a petition for relief under 28 U.S.C. § 2255. Like the right to bring a direct appeal of his sentence, the right Abarca seeks to exercise in bringing a collateral attack is statutory. See Abney v. United States, 431 U.S. 651, 656, 97 S.Ct. 2034, 2038, 52 L.Ed.2d 651 (1977) (“The right of appeal, as we presently know it in criminal cases, is purely a creature of statute_”). A knowing and voluntary waiver of a statutory right is enforceable. Navarro-Botello, 912 F.2d at 321. While we do not hold that Abarca’s waiver categorically forecloses him from bringing any section 2255 proceeding, such as a claim of ineffective assistance of counsel or involuntariness of waiver, United States v. Marin, 961 F.2d 493, 496 (4th Cir.1992); United States v. Rutan, 956 F.2d 827, 829-30 (8th Cir.1992); Navarro-Botello, 912 F.2d at 321, the question of the degree of his culpability is an issue ele' ly contemplated by, and subject to, his p a agreement waiver.
We hold that Abarca has relinquished his right to seek relief, direct or collateral, from his sentence on the ground that he has discovered new exculpatory evidence that undermines the factual basis of the trial court’s sentencing decision.
AFFIRMED.
1
. The appellant’s name appears in different forms in the captions of his two appeals. We adopt the form that appears most frequently in the briefs and record.
2
. 18 U.S.C. § 3742, among other things, provides:
(a) A defendant may file a notice of appeal in the district court for review of an otherwise final sentence if the sentence (1) was imposed in violation of law; (2) was imposed as a result of an incorrect application of the sentencing guidelines; or (3) is greater than the sentence specified in the applicable guideline range to the extent that the sentence includes a greater fine or term of imprisonment, probation, or supervised release than the maximum established in the guideline range, or includes a more limiting condition of probation or supervised release under section 3563(b)(6) or (b)(ll) than the maximum established in the guideline range; or (4) was imposed for an offense for which there is no sentencing guideline and is plainly unreasonable.
(c) In the case of a plea agreement that includes a specific sentence under rule 11(e)(1)(C) of the Federal Rules of Criminal Procedure (1) a defendant may not file a notice of appeal under paragraph (3) or (4) of subsection (a) unless the sentence imposed is greater than the sentence set forth in such agreement ...
3
.28 U.S.C. § 2255 provides in part:
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or law of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
A motion for such relief may be made at any time.
An appeal may be taken to the court of appeals from the order entered on the motion as from a final judgment on application for a writ of habeas corpus.