Opposition Brief — Munson P. Hunter, III, Petitioner v. United States

No. 24-1063

In the Supreme Court of the United States

MUNSON P. HUNTER, III, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

D. JOHN SAUER

Solicitor General

Counsel of Record

MATTHEW R. GALEOTTI

KATHERINE TWOMEY ALLEN

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Whether the court of appeals correctly dismissed petitioner’s appeal based on the appeal waiver in his plea

agreement.

(I)

ADDITIONAL RELATED PROCEEDINGS

United States District Court (S.D. Tex.):

United States v. Hunter, No. 23-cr-85 (May 13, 2024)

United States Court of Appeals (5th Cir.):

United States v. Hunter, No. 24-20211 (Dec. 6, 2024)

(II)

TABLE OF CONTENTS

Page

Opinion below ................................................................................ 1

Jurisdiction .................................................................................... 1

Statement ...................................................................................... 1

Argument....................................................................................... 6

Conclusion ................................................................................... 16

TABLE OF AUTHORITIES

Cases:

Abney v. United States, 431 U.S. 651 (1977) ...................... 10

Albrecht v. United States, 329 U.S. 599 (1947) ..................... 8

Allen v. United States, 144 S. Ct. 859 (2024) ........................ 6

Garza v. Idaho, 586 U.S. 232 (2019) ...................................... 7

Goldston v. United States, 141 S. Ct. 828 (2020) .................. 6

Harper v. United States, 143 S. Ct. 582 (2023) ..................... 6

Jimenez v. United States, 143 S. Ct. 1745 (2023) ................. 6

Jones v. United States, cert. denied, No. 24-6505

(June 6, 2025) ........................................................................ 6

Margalli-Olvera v. INS, 43 F.3d 345 (8th Cir. 1994) ........... 9

Ricketts v. Adamson, 483 U.S. 1 (1987) ................................ 7

Rivers v. United States, 144 S. Ct. 215 (2023) ...................... 6

Sanchez v. United States, 142 S. Ct. 410 (2021) ................... 6

Town of Newton v. Rumery, 480 U.S. 386 (1987) ................ 7

United States v. Andis, 333 F.3d 886 (8th Cir.),

cert. denied, 540 U.S. 997 (2003) ..................................... 7, 8

United States v. Arevalo, 628 F.3d 93 (2d Cir. 2010),

cert. denied, 563 U.S. 976 (2011) ....................................... 12

United States v. Arias-Espinosa,

704 F.3d 616 (9th Cir. 2012) ............................................... 15

United States v. Atherton,

134 F.4th 1009 (9th Cir. 2025) ........................................... 13

(III)

IV

Cases—Continued:

Page

United States v. Atterberry,

144 F.3d 1299 (10th Cir. 1998) ........................................... 14

United States v. Barnes, 953 F.3d 383 (5th Cir.),

cert. denied, 141 S. Ct. 438 (2020) ....................................... 6

United States v. Bascomb,

451 F.3d 1292 (11th Cir. 2006) ........................................... 14

United States v. Bibler, 495 F.3d 621 (9th Cir.),

cert. denied, 552 U.S. 1052 (2007) ..................................... 13

United States v. Boudreau, 58 F.4th 26 (1st Cir.),

cert. denied, 144 S. Ct. 229 (2023) .........................................13

United States v. Burden, 860 F.3d 45 (2d Cir. 2017) ......... 12

United States v. Bushert, 997 F.2d 1343

(11th Cir. 1993), cert. denied, 513 U.S. 1051 (1994) ........... 7

United States v. Carter, 87 F.4th 217 (4th Cir. 2023) ........ 12

United States v. Del Valle-Cruz,

785 F.3d 48 (1st Cir. 2015) ................................................. 13

United States v. Elliott,

264 F.3d 1171 (10th Cir. 2001) ............................................. 8

United States v. Ellis, 720 F.3d 220 (5th Cir.),

cert. denied, 571 U.S. 1074 (2013) ..................................... 16

United States v. Fisher, 232 F.3d 301 (2d Cir. 2000) ......... 14

United States v. Fleming,

239 F.3d 761 (6th Cir. 2001) ............................................... 14

United States v. Gebbie, 294 F.3d 540 (3d Cir. 2002) ........... 9

United States v. Gonzalez,

259 F.3d 355 (5th Cir. 2001) ................................................. 6

United States v. Goodall,

21 F.4th 555 (9th Cir. 2021), cert. denied,

142 S. Ct. 2666 (2022) ......................................................... 10

United States v. Guillen,

561 F.3d 527 (D.C. Cir. 2009) ..................................... 7, 8, 10

United States v. Guzman,

457 Fed. Appx. 223 (4th Cir. 2011) .................................... 14

V

Cases—Continued:

Page

United States v. Hahn,

359 F.3d 1315 (10th Cir. 2004) ............................................. 9

United States v. Hernandez,

134 F.3d 1435 (10th Cir. 1998) ............................................. 7

United States v. Jones, 134 F.4th 831 (5th Cir. 2025) ........ 13

United States v. Khattak, 273 F.3d 557 (3d Cir. 2001) ........ 7

United States v. Marin, 961 F.2d 493 (4th Cir. 1992) ......... 7

United States v. Melancon,

972 F.2d 566 (5th Cir. 1992) ........................................... 7, 14

United States v. Mezzanatto, 513 U.S. 196 (1995) ......... 7, 10

United States v. Michelsen, 141 F.3d 867 (8th Cir.),

cert. denied, 525 U.S. 942 (1998) ....................................... 14

United States v. Navarro-Botello,

912 F.2d 318 (9th Cir. 1990), cert. denied,

503 U.S. 942 (1992)................................................................ 7

United States v. Ogden, 102 F.3d 887 (7th Cir. 1996) ........ 14

United States v. Riggi, 649 F.3d 143 (2d Cir. 2011) ....... 7, 12

United States v. Singletary, 75 F.4th 416 (4th Cir.),

cert. denied, 144 S. Ct. 519 (2023) ..................................... 12

United States v. Teeter, 257 F.3d 14 (1st Cir. 2001)... 7, 8, 14

United States v. Toth, 668 F.3d 374 (6th Cir. 2012) ............. 7

United States v. Wells, 29 F.4th 580 (9th Cir.),

cert, denied, 143 S. Ct. 267 (2022) ..................................... 13

United States v. Woolley, 123 F.3d 627

(7th Cir. 1997)........................................................................ 7

Zamarripa v. United States, 141 S. Ct. 2571 (2021) ............ 6

Constitution, statutes, and rules:

U.S. Cont. Amend. V (Due Process Clause) ....................... 11

18 U.S.C. 2 ................................................................................ 1

18 U.S.C. 1343 ...................................................................... 1, 2

18 U.S.C. 1344 .......................................................................... 2

VI

Statutes and rules—Continued:

Page

18 U.S.C. 1349 .......................................................................... 2

18 U.S.C. 3563(b)(9) ............................................................... 11

42 U.S.C. 1983 .......................................................................... 7

Fed. R. Crim. P:

Rule 11(d) ......................................................................... 15

Rule 11(e) ......................................................................... 15

Miscellaneous:

United States Sentencing Guidelines § 5D1.3(d)(5)

(2023) .................................................................................... 11

In the Supreme Court of the United States

No. 24-1063

MUNSON P. HUNTER, III, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. 1a-3a)

is unreported but available at 2024 WL 5003582.

JURISDICTION

The judgment of the court of appeals was entered on

December 6, 2024. On February 13, 2025, Justice Alito

extended the time within which to file a petition for a

writ of certiorari to and including April 5, 2025, and the

petition was filed on April 4, 2025. The jurisdiction of

this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

Following a guilty plea in the United States District

Court for the Southern District of Texas, petitioner was

convicted on one count of aiding and abetting wire fraud

affecting a financial institution, in violation of 18 U.S.C.

1343 and 2. Pet. App. 38a. The district court sentenced

(1)

2

petitioner to 51 months of imprisonment, to be followed

by three years of supervised release. Id. at 40a-41a.

The court of appeals dismissed petitioner’s appeal in

relevant part. Id. at 1a-3a.

1. Between 2013 and 2023, petitioner used fraudulently obtained Social Security numbers to open 14 bank

accounts, acquire at least 18 credit cards, and apply for

loans from the Small Business Administration. See

Presentence Investigation Report (PSR) ¶¶ 28-31. Those

fraudulent acts ultimately cost others nearly half a million dollars. PSR ¶ 36 (detailing $488,352.25 in losses);

see Pet. App. 11a-12a (describing specific acts of fraud).

A grand jury in the Southern District of Texas returned a superseding indictment charging petitioner

with one count of conspiring to commit bank fraud, in

violation of 18 U.S.C. 1349; one count of bank fraud, in

violation of 18 U.S.C. 1344; one count of conspiring to

commit wire fraud, in violation of 18 U.S.C. 1349; and

seven counts of wire fraud, in violation of 18 U.S.C.

1343. Superseding Indictment 1-20.

Petitioner later pleaded guilty, pursuant to a written

plea agreement, to one count of aiding and abetting wire

fraud. Pet. App. 4a. As part of that plea agreement, the

United States agreed to dismiss the nine other charges.

Id. at 8a. And the United States Attorney’s Office for

the Southern District of Texas agreed that it would not

further prosecute petitioner “for the specific conduct

described in the Superseding Indictment.” Id. at 9a.

The plea agreement explicitly provided that petitioner “knowingly and voluntary waives the right to appeal or ‘collaterally attack’ the conviction and sentence,

except that [petitioner] does not waive the right to raise

a claim of ineffective assistance of counsel on direct appeal” or collateral review. Pet. App. 6a. It specified

3

that if petitioner nonetheless tried to appeal his sentence, the United States would “assert its rights under

this agreement and seek specific performance of these

waivers.” Id. at 7a.

The plea agreement underscored that “[i]n agreeing

to these waivers,” petitioner was “aware that a sentence

has not yet been determined by the Court” and that the

United States “does not make any promise or representation concerning what sentence the defendant will receive.” Pet. App. 7a-8a. The agreement also affirmed

that petitioner “understands and agrees that each and

all waivers contained in the Agreement are made in exchange for the concessions made by the United States

in this plea agreement.” Id. at 8a.

2. Following the parties’ agreement, the district

court held a rearraignment hearing. 4:23-cr-85 Docket

entry No. 116 (Feb. 14, 2024). At that hearing, the court

explained to petitioner the rights that he would be waiving by pleading guilty. D. Ct. Doc. 166, at 8 (July 29,

2024). The court further confirmed that petitioner understood that his supervised release would be subject to

a number of conditions that would be monitored by a

probation officer, and that he could face additional imprisonment if he violated those conditions. Id. at 8-9.

In response, petitioner assured the court that he had

read the plea agreement, and understood its terms.

D. Ct. Doc. 166, at 10-13. During that colloquy, the

court specifically ensured that petitioner appreciated

the appeal-waiver provisions of his plea bargain. Id. at

11-12. The court explained that petitioner was “[b]asically * * * agreeing to whatever sentence I impose.”

Id. at 11. Petitioner agreed. Ibid.

After the district court had gone over the terms of

the plea agreement, petitioner entered his guilty plea to

4

the single agreed-upon count out of the ten charged.

D. Ct. Doc. 166, at 14-15. Both petitioner and his counsel then signed the agreement. Id. at 15. The court

found that petitioner’s plea was “knowing and voluntary” and accepted it. Ibid.

3. Before sentencing, the Probation Office calculated petitioner’s sentencing range under the advisory

Sentencing Guidelines to be 63 to 78 months of imprisonment. PSR ¶ 91. The Probation Office also recommended that, as conditions of petitioner’s supervised release, he participate in a mental-health treatment program and that he take any mental-health medications

later prescribed by his physician. PSR App. 1.

The presentence report stated that petitioner “suffers from symptoms of anxiety and depression” and

“was diagnosed with both conditions when he was approximately 10 years old.” PSR ¶ 80. It also stated that

petitioner’s “symptoms increased after [he] was sexually assaulted at the age of 14,” but that he “has refused medication to treat his symptoms.” Ibid. And it

explained that the recommended conditions were “due

to [petitioner’s] self-reported history of mental health

diagnoses,” and “will assist the probation officer in

providing services to [him] while on supervision.” Ibid.

The district court held a sentencing hearing and sentenced petitioner to 51 months of imprisonment, to be

followed by three years of supervised release. Pet. App.

35a. With respect to the conditions of his supervised

release, the court asked petitioner whether he had any

objections to what had been proposed in the presentence report. Id. at 23a-24a. Petitioner said that he

“want[s] to take mental health programs, but I don’t

want to take any medication.” Id. at 24a.

5

The district court responded by informing petitioner

that “if you’re going to participate in mental health

treatment and the treatment provider prescribes drugs,

you should take them.” Pet. App. 24a. But the court

added that “[i]f there’s a dispute, you can address it to

the probation officer” and “[i]f the probation officer

can’t resolve the dispute, you can address it to me.” Ibid.

The court ultimately ordered that petitioner “must participate in a mental health treatment program and follow the rules and regulations of the program.” Id. at

35a. The court also stated that petitioner “must take all

mental health medications that are prescribed by [his]

treating physician.” Ibid.

After the district court sentenced petitioner, the government moved to dismiss the remaining counts of the

indictment, as specified in the plea agreement. Pet.

App. 36a. At the conclusion of proceedings, the court

remarked: “You have a right to appeal. If you wish to

appeal, [current defense counsel] will continue to represent you.” Ibid. The court asked if either counsel wished

to say anything else and both parties declined to do so.

Ibid.

4. Notwithstanding his appeal waiver, petitioner

subsequently appealed. Among other things, petitioner

raised a due-process claim challenging the condition of

his supervised release that would require him to take

any mental-health medications that might later be prescribed by a physician. Pet. C.A. Br. 9. Petitioner argued that his appeal waiver should not bar that claim,

on the alternative theories that either (1) an appeal

waiver does not extend to constitutional claims, or (2)

an appeal waiver should not be enforced where the district court states that a defendant has the right to appeal and the government fails to object. Id. at 8-9.

6

Petitioner accepted, however, that both theories were

foreclosed by circuit precedent. Id. at 9 nn.5 & 6.

Applying that precedent, the court of appeals dismissed petitioner’s challenge in an unpublished per curiam opinion. Pet. App. 1a-3a. The court observed that

petitioner’s appeal waiver barred his claim. Id. at 2a.

And the court cited its precedent rejecting the theories

that “the right to challenge an unconstitutional sentence cannot be waived” and that “the district court’s

statement at the sentencing hearing that [petitioner]

had a right to appeal * * * impact[ed] the validity of the

appeal waiver. Ibid. (citing United States v. Gonzalez,

259 F.3d 355, 358 (5th Cir. 2001) and United States v.

Barnes, 953 F.3d 383, 389 (5th Cir.), cert. denied, 141

S. Ct. 438 (2020)).

ARGUMENT

Petitioner agrees (Pet. 7) that his appeal is barred by

the plain text of his waiver. But he contends (Pet. 2026) that he should be excused from that provision of his

plea agreement, on the theory that it is unenforceable.

The court of appeals correctly rejected that contention,

and its decision does not meaningfully conflict with any

decision of this Court or another court of appeals. This

Court has repeatedly denied certiorari in cases involving similar issues.1 The petition should be denied.

See, e.g., Jones v. United States, No. 24-6505 (June 6, 2025); Allen v. United States, 144 S. Ct. 859 (2024) (No. 23-6405); Rivers v.

United States, 144 S. Ct. 215 (2023) (No. 23-5121); Jimenez v.

United States, 143 S. Ct. 1745 (2023) (No. 22-536); Harper v. United

States, 143 S. Ct. 582 (2023) (No. 22-5111); Sanchez v. United States,

142 S. Ct. 410 (2021) (No. 21-5712); Zamarripa v. United States, 141

S. Ct. 2571 (2021) (No. 20-6668); Goldston v. United States, 141 S.

Ct. 828 (2020) (No. 20-5862). Similar issues are also raised in

Chaney v. United States, No. 24-6543 ( filed Feb. 6, 2025), and

1

7

1. a. This Court has recognized that a defendant

may knowingly and voluntarily waive constitutional or

statutory rights—including appellate rights—as part of

a plea agreement. See, e.g., Garza v. Idaho, 586 U.S.

232, 238-239 (2019) (waiver of right to appeal); Ricketts

v. Adamson, 483 U.S. 1, 8-10 (1987) (waiver of right to

raise a double-jeopardy defense); Town of Newton v.

Rumery, 480 U.S. 386, 389 (1987) (waiver of right to file

an action under 42 U.S.C. 1983). As a general matter,

statutory rights are subject to waiver in the absence of

an “affirmative indication” to the contrary by Congress.

United States v. Mezzanatto, 513 U.S. 196, 201 (1995).

Likewise, even the “most fundamental protections afforded by the Constitution” may be waived. Ibid.

In accord with those principles, the courts of appeals

have uniformly recognized that a defendant’s voluntary

and knowing waiver in a plea agreement of the right to

appeal is enforceable. 2 As those courts have explained,

appeal waivers benefit defendants by providing them

with “an additional bargaining chip in negotiations with

Aquino v. United States, No. 25-79 ( filed June 6, 2025), both of

which are currently pending.

2

See United States v. Teeter, 257 F.3d 14, 21-23 (1st Cir. 2001);

United States v. Riggi, 649 F.3d 143, 147-150 (2d Cir. 2011); United

States v. Khattak, 273 F.3d 557, 560-562 (3d Cir. 2001); United

States v. Marin, 961 F.2d 493, 495-496 (4th Cir. 1992); United States

v. Melancon, 972 F.2d 566, 567-568 (5th Cir. 1992); United States v.

Toth, 668 F.3d 374, 377-379 (6th Cir. 2012); United States v. Woolley, 123 F.3d 627, 631-632 (7th Cir. 1997); United States v. Andis,

333 F.3d 886, 889-891 (8th Cir.) (en banc), cert. denied, 540 U.S. 997

(2003); United States v. Navarro-Botello, 912 F.2d 318, 320-322 (9th

Cir. 1990), cert. denied, 503 U.S. 942 (1992); United States v. Hernandez, 134 F.3d 1435, 1437-1438 (10th Cir. 1998); United States v.

Bushert, 997 F.2d 1343, 1347-1350 (11th Cir. 1993), cert. denied, 513

U.S. 1051 (1994); United States v. Guillen, 561 F.3d 527, 529-532

(D.C. Cir. 2009).

8

the prosecution.” United States v. Teeter, 257 F.3d 14,

22 (1st Cir. 2001); see, e.g., United States v. Elliott, 264

F.3d 1171, 1174 (10th Cir. 2001). In turn, appeal waivers

benefit the government and the courts by enhancing the

finality of judgments and sentences, and discouraging

meritless appeals. See, e.g., United States v. Guillen,

561 F.3d 527, 530 (D.C. Cir. 2009); United States v. Andis, 333 F.3d 886, 889 (8th Cir.) (en banc), cert. denied,

540 U.S. 997 (2003); Teeter, 257 F.3d at 22-23.

This case illustrates the mutual benefits of appeal

waivers. In exchange for petitioner’s plea and waiver of

his rights to appeal and collaterally attack his conviction

and sentence on one count, the government agreed to

dismiss nine other counts. Pet. App. 8a. Those dismissed

counts included one count of conspiring to commit bank

fraud, one count of bank fraud, one count of conspiring

to commit wire fraud, and six additional counts of wire

fraud (five of which were part of the same scheme to

which petitioner pleaded guilty). Superseding Indictment 1-20. The government further agreed not to criminally prosecute petitioner in the Southern District of

Texas for the specific conduct described in the Superseding Indictment. Pet. App. 9a.

The court of appeals correctly enforced petitioner’s

appeal waiver. As petitioner emphasizes (Pet. 20-21),

plea agreements are contractual in nature. But the first

rule of contracts is that parties must be held to the

benefits—and burdens—of their bargain. See, e.g.,

Albrecht v. United States, 329 U.S. 599, 603 (1947) (applying principle that a party to a contract “stand[] upon

its terms to enforce them for his own advantage, he cannot at the same time successfully disavow those terms

so far as he conceives them to be to his disadvantage”).

And the terms are set by “the text of the contract.”

9

United States v. Gebbie, 294 F.3d 540, 545 (3d Cir. 2002);

see United States v. Hahn, 359 F.3d 1315, 1324-1325

(10th Cir. 2004) (en banc) (per curiam); Margalli-Olvera

v. INS, 43 F.3d 345, 351 (8th Cir. 1994). Here, the plea

agreement included an express waiver of the right to

“appeal or ‘collaterally attack’ the conviction and sentence,” except as to two narrow grounds—an ineffective-assistance claim, or one challenging an above-maximum sentence. See Pet. App. 6a. The agreement also

specified that if petitioner did in fact try to appeal his

sentence, the United States “will assert its rights under

this agreement and seek specific performance of these

waivers.” Id. at 7a.

Petitioner does not dispute that his challenge to a

condition of his supervised release falls squarely within

the scope of the text of his appeal waiver. See Pet. 1920. Nor does, or could, petitioner argue that he did not

knowingly and voluntarily agree to that provision at the

time the plea agreement was entered. At the rearraignment, the district court walked petitioner through his

plea agreement, including its appeal waiver; petitioner

affirmed that he understood that provision; and then he

signed the plea agreement along with his attorney, affirming once more that he appreciated its terms. See

pp. 3-4, supra. The court of appeals correctly held petitioner to the terms of the deal he accepted and rightly

dismissed his appeal.

b. Notwithstanding voluntarily entering into a plea

agreement that allowed for an appeal only in certain delineated circumstances, petitioner now asserts that his

appeal waiver is unenforceable because his appeal raises

a constitutional challenge. Pet. 20-24. That assertion

lacks merit. As a threshold matter, the actual right that

petitioner has waived—the right to appeal—is not itself

10

guaranteed by the Constitution; it is instead purely

statutory. See Abney v. United States, 431 U.S. 651, 656

(1977). But even if the subject of a potential appeal, rather than the right to appeal, were the proper focus, this

Court has made clear that “many of the most fundamental protections afforded by the Constitution” may be

waived, including as part of a plea agreement. See, e.g.,

Mezzanatto, 513 U.S. at 201. Thus, under this Court’s

cases, there is no doubt that petitioner had the power to

bargain away his appellate rights as part of obtaining a

deal from the government. Because petitioner wielded

that power knowingly and voluntarily here, his appeal

is foreclosed.

Petitioner maintains that holding him to the letter of

his plea agreement is “oppressive” or may lead to “unfair surprise,” because it may involve subjecting him to

an illegal sentence. Pet. 21-24. But the defendant’s belief that his sentence may be illegal is not a valid basis

for disregarding an appeal waiver. The entire point of

an appeal waiver is for a defendant to waive the right to

challenge a sentence he believes is illegal—be it on statutory or constitutional grounds. See Guillen, 561 F.3d

at 529. By design, the bargaining chip is that the defendant is “giving up all appeals, no matter what unforeseen events may happen.” United States v. Goodall, 21

F.4th 555, 562 (9th Cir. 2021), cert. denied, 142 S. Ct.

2666 (2022). A “plea agreement is no different in this

respect from any other contract in which someone may

have buyer’s remorse after an unforeseen future event

—the contract remains valid because the parties knowingly and voluntarily agreed to the terms.” Ibid.

Moreover, in the circumstances of this case, petitioner’s particular claim to “unfair surprise” is especially misplaced. The district court expressly warned

11

petitioner that the “most frequent basis for an appeal is

complaining [about the] sentence,” and that petitioner

was giving this up—“[b]asically * * * agreeing to whatever sentence I impose.” D. Ct. Doc. 166, at 11. Nor

was the supervised-release condition that he seeks to

challenge at all unforeseeable. Petitioner admitted, at

the time of his plea, that he suffered from mental-health

problems. Id. at 5. And Congress has long authorized

courts to impose, as a condition of supervised release,

that defendants “undergo available medical, psychiatric, or psychological treatment * * * as specified by

the court.” 18 U.S.C. 3563(b)(9); see Sentencing Guidelines § 5D1.3(d)(5) (2023).

Petitioner’s general concern (Pet. 24) about the effect of appellate waivers on constitutional rights is not

implicated here. Petitioner cites no case where a court

has agreed with his view that the Due Process Clause

categorically precludes possible mandatory mentalhealth treatments during supervised release. Nor does

he explain why most of his parade of horribles (e.g., “pillory,” “public flogging,” “mandatory sterilization”)

could not be addressed in the Fifth Circuit, see ibid.,

given its exception for sentences that are in excess of

statutory authorization. At minimum, to the extent those

extreme hypotheticals present themselves, this Court

could address them in the exceedingly unlikely event

they arise.

c. Petitioner errs in suggesting (Pet. 8-15) that other

courts of appeals would necessarily have reached a different result in the circumstances of this case. Petitioner is incorrect in asserting (Pet. 11-13) that a number of circuits have a categorical rule that voids appeal

waivers reaching constitutional claims. The Second Circuit, for example, agrees that a defendant can waive

12

“elemental constitutional and statutory rights” when he

pleads guilty. United States v. Riggi, 649 F.3d 143, 148

(2011) (citation omitted) (cited at Pet. 12). And although

that court may decline to enforce a waiver of “a right

that has an overriding impact on public interests,” or

that would preclude a challenge “to unanticipated matters at sentencing,” ibid. (citation omitted), it continues

to recognize that a defendant may validly waive an appellate claim on a constitutional issue. Indeed, in two of

the cases cited by petitioner, the Second Circuit found

that an appellate waiver did in fact bar the claims at issue. Id. at 147-149; see United States v. Arevalo, 628

F.3d 93, 98-100 (2010), cert. denied, 563 U.S. 976 (2011).

And in the third, the court simply determined that the

appellate waiver at issue did not reach challenges to supervised release. See United States v. Burden, 860

F.3d 45, 53-55 (2d Cir. 2017) (per curiam).

Likewise, petitioner asserts that the Fourth Circuit

deems an appeal waiver unenforceable where the “sentencing court violated a fundamental constitutional or

statutory right.” Pet. 12 (quoting United States v.

Carter, 87 F.4th 217, 225 (4th Cir. 2023)). But petitioner

omits the second half of the quote: the right must also

be “firmly established at the time of sentencing.” Carter,

87 F.4th at 225 (citation omitted). That exception includes only a “narrow class of claims.” United States v.

Singletary, 75 F.4th 416, 422-423 (4th Cir.), cert. denied, 144 S. Ct. 519 (2023) (citation omitted) (cited at

Pet. 13). But this case does not fit within that narrow

class: the supervised-release condition at issue is specifically authorized by Congress, and there is no colorable argument it is “firmly established” that such a condition is unlawful.

13

Petitioner’s reliance on caselaw from the First Circuit is similarly misplaced. That court has adopted a

narrow miscarriage-of-justice exception to appeal waivers for “egregious cases” where the sentencing condition is “so lacking in rationality or so wholly unrelated

to legitimate sentencing purposes as to necessitate invalidating the waiver of appeal.” United States v. Boudreau, 58 F.4th 26, 33 (1st Cir.), cert. denied, 144 S. Ct.

229 (2023) (brackets and citations omitted). But the

court below has “declined explicitly either to adopt or to

reject” such an exception. United States v. Barnes, 953

F.3d 383, 389 (5th Cir), cert. denied, 141 S. Ct. 438

(2020); see United States v. Jones, 134 F.4th 831, 841842 (5th Cir. 2025). And petitioner did not ask it to

adopt the exception in his case. Accordingly, he has

failed to preserve any claim that such an exception

should be applied to this case. Indeed, the First Circuit

decision on which petitioner relies itself rejected a challenge to a “mental health treatment condition” of supervised released on the ground that the defendant had

“waived” it by failing to sufficiently explain why it would

“result in a miscarriage of justice.” United States v. Del

Valle-Cruz, 785 F.3d 48, 54 (2015) (cited at Pet. 12).

Finally, petitioner asserts that the Ninth Circuit has

considered the merits of challenges largely similar to

his claim. See Pet. 11. But after petitioner filed this

petition, the Ninth Circuit granted the government’s

petition for rehearing en banc in one of the primary decisions upon which he relies. See United States v.

Atherton, 134 F.4th 1009 (2025). And in that petition,

the government asked the Ninth Circuit to also reconsider two other decisions that petitioner invokes (Pet.

11)—United States v. Wells, 29 F.4th 580, cert denied.,

143 S. Ct. 267 (2022), and United States v. Bibler, 495

14

F.3d 621, cert. denied, 552 U.S. 1052 (2007). Accordingly, to the extent there is any tension between the

Ninth Circuit’s approach and that of any other court of

appeals, this Court’s intervention would be premature.

2. Petitioner separately contends that his appeal

waiver should not be enforced because, months after he

had entered into the plea agreement, the sentencing

judge briefly stated that he could file an appeal, and the

government did not immediately object. See Pet. 13-15.

That contention does not warrant this Court’s review.

Except for the Ninth Circuit, every court of appeals

to expressly address the issue has correctly recognized

that a misstatement by a district judge made months

after the defendant entered into a plea agreement does

not undermine the knowing and voluntary nature of the

defendant’s appeal waiver. See United States v. Melancon, 972 F.2d 566, 568 (5th Cir. 1992); Teeter, 257 F.3d

at 25; United States v. Fisher, 232 F.3d 301, 304 (2d Cir.

2000); United States v. Fleming, 239 F.3d 761, 765 (6th

Cir. 2001); United States v. Ogden, 102 F.3d 887, 888889 (7th Cir. 1996); United States v. Michelsen, 141 F.3d

867, 872 (8th Cir.), cert. denied, 525 U.S. 942 (1998);

United States v. Atterberry, 144 F.3d 1299, 1301 (10th

Cir. 1998); United States v. Bascomb, 451 F.3d 1292,

1297 (11th Cir. 2006); see also United States v. Guzman,

457 Fed. Appx. 223, 225 (4th Cir. 2011) (per curiam).

Any disagreement between the Ninth Circuit’s approach and the approaches of other circuits does not

warrant this Court’s review in this case. Among other

things, it is far from clear that petitioner’s claim would

succeed even in the Ninth Circuit. Contrary to petitioner’s suggestion (Pet. 13-14), that court does not apply a mechanistic rule that vitiates every appeal waiver

in the face of any judicial misstatement that goes

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uncorrected. Instead, that court conducts a case-specific examination of the “court’s statement” and “the defendant’s reasonable expectations about his rights.”

United States v. Arias-Espinosa, 704 F.3d 616, 618-619

(9th Cir. 2012). And here, at the time of petitioner’s

guilty plea, the district court was clear—and petitioner

confirmed that he “underst[ood]”—that “[b]asically

you’re agreeing to whatever sentence I impose.” D. Ct.

Doc. 166, at 11; see id. at 12 (petitioner’s affirmation

that he also understood that he was “giving up [his]

right to appeal and to collaterally attack [his] conviction

and sentence”).

Although the district court many months later—well

after petitioner became bound by the plea agreement,

see Fed. R. Crim. P. 11(d) and (e)—referred to petitioner’s “right to appeal,” Pet. App. 13a, that comment

is unlikely to have “create[d] ‘confusion,’ * * * or a ‘reasonable expectation’ of a right to appeal,” Arias-Espinosa, 704 F.3d at 619 (citations omitted), which would

affect its enforceability. Petitioner does not cite any example of the Ninth Circuit refusing to enforce an appellate waiver where that court had specifically explained

the terms of the waiver to the defendant before he formally accepted it.

3. At all events, this case would be a poor vehicle for

addressing the question presented. Even if petitioner

were to prevail in this Court, it would be in service of a

due-process claim that would be barred in the courts below. As petitioner himself has acknowledged (Pet. C.A.

Br. 8 n.4), his challenge to a condition of his future supervised release is unripe under binding Fifth Circuit

precedent. It is not clear whether petitioner will be prescribed any medication at all—and even if he is prescribed such medication years from now (and even if he

16

still does not want to take it), “he may petition the district court for a modification of his conditions.” United

States v. Ellis, 720 F.3d 220, 227 (5th Cir.) (per curiam),

cert. denied, 571 U.S. 1074 (2013). And the district court

emphasized that “[i]f there’s a dispute, you can address

it to the probation officer” and “[i]f the probation officer

can’t resolve the dispute, you can address it to me.” Pet.

App. 24a. Accordingly, even though he waived his direct

appeal, petitioner has other avenues for relief from the

supervised-release condition that he sought to challenge on appeal.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

D. JOHN SAUER

Solicitor General

MATTHEW R. GALEOTTI

KATHERINE TWOMEY ALLEN

Attorneys

AUGUST 2025