Petition for Writ of Certiorari — Devin Chaney, Petitioner v. United States
Supreme Court briefFeb 6, 2025
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No. ___________
IN THE
Supreme Court of the United States
DEVIN CHANEY,
v.
Petitioner,
UNITED STATES OF AMERICA,
Respondent.
ON PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
PETITION FOR WRIT OF CERTIORARI
CLAUDE J. KELLY
FEDERAL PUBLIC DEFENDER
EASTERN DISTRICT OF LOUISIANA
CELIA C. RHOADS
COUNSEL OF RECORD
500 POYDRAS STREET, SUITE 318
HALE BOGGS FEDERAL BUILDING
NEW ORLEANS, LOUISIANA 70130
(504) 589-7930
CELIA_RHOADS@FD.ORG
COUNSEL FOR PETITIONER
QUESTIONS PRESENTED
Although the right to appeal a criminal sentence is a statutory entitlement,
federal prosecutors in many jurisdictions—including the Eastern District of
Louisiana—require plea agreements containing a waiver of that right. At the point a
criminal defendant enters into such an agreement, however, he has no way of
knowing what errors the district court may commit at a future sentencing hearing
nor the magnitude and impact of such errors. This Court has yet to rule on the validity
of such waivers nor the limits on their enforcement. The result is a messy, multidimensional circuit split that injects confusion, unpredictability, and disparate
treatment into one of the most common procedures in federal criminal law: the plea
agreement. In this case, Petitioner Devin Chaney signed such an agreement without
knowing (or possibly being able to anticipate) that the district court would eschew its
basic duties and responsibilities at sentencing—not just failing to correct error
brought to its attention but refusing to address the issue at all. As a result,
Mr. Chaney received a sentence six years higher than he should have, following a
sentencing proceeding that did not comport with basic tenants of due process.
Thus, the questions presented are:
Can a criminal defendant knowingly and voluntarily waive the right to appeal
a district court’s yet-to-be-made errors as part of a plea agreement, and, if so, what
are the limits on the validity and enforceability of such appeal waivers?
Relatedly, did the appeal waiver in Mr. Chaney’s case qualify for the so-called
“miscarriage of justice” or other exception recognized by numerous appellate courts?
ii
RELATED PROCEEDINGS
The following proceedings are directly related to this case:
United States v. Chaney, No. 22-cr-16-1, U.S. District Court for the
Eastern District of Louisiana. Judgment entered June 27, 2023.
United States v. Chaney, No. 23-30454, U.S. Court of Appeals for the
Fifth Circuit. Judgment entered November 8, 2024.
iii
TABLE OF CONTENTS
QUESTIONS PRESENTED ......................................................................................... II
RELATED PROCEEDINGS........................................................................................ III
TABLE OF AUTHORITIES ..........................................................................................V
PETITION FOR A WRIT OF CERTIORARI ................................................................ 7
JUDGMENT AT ISSUE ................................................................................................ 7
JURISDICTION............................................................................................................. 7
STATUTORY PROVISION INVOLVED ...................................................................... 8
STATEMENT OF THE CASE ....................................................................................... 9
REASONS FOR GRANTING THE PETITION .......................................................... 13
I.
This Court should finally weigh in on the constitutionality of
ubiquitous appeal waivers like the one in this case—which are
inherently unknowing and involuntary. ............................................... 15
II.
This Court should resolve the entrenched and chaotic circuit split
over appeal waiver enforcement, which long has resulted in
inconsistent treatment of criminal appellants. ..................................... 21
III.
This case is an ideal vehicle for this Court to address appeal
waivers—and Mr. Chaney’s circumstances similarly present an
ideal opportunity to apply the “miscarriage of justice” exception. ....... 25
CONCLUSION............................................................................................................. 28
APPENDIX
iv
TABLE OF AUTHORITIES
Cases
Armstrong v. Manzo, 380 U.S. 545 (1965) .................................................................. 26
Boykin v. Alabama, 395 U.S. 238 (1969) .................................................................... 17
Garza v. Idaho, 139 S. Ct. 738 (2019) ......................................................................... 12
Hurlow v. United States, 726 F.3d 958 (7th Cir. 2013) .............................................. 24
Johnson v. Zerbst, 304 U.S. 458 (1938) ................................................................. 16, 27
Lafler v. Cooper, 132 S. Ct. 1376 (2012)...................................................................... 14
Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982) ............................................... 26
Mathews v. Eldridge, 424 U.S. 319 (1976) .................................................................. 26
Missouri v. Frye, 566 U.S. 134 (2012) ......................................................................... 14
Newton v. Rumery, 480 U.S. 386 (1987) ..................................................................... 17
Rudolph v. United States, 92 F.4th 1038 (11th Cir. 2024) ......................................... 23
United States v. Abdulaziz, 998 F.3d 519 (1st Cir. 2021) ............................................ 9
United States v. Abreu, 202 F.3d 386 (1st Cir. 2000) ................................................. 26
United States v. Acquaye, 452 F.3d 380 (5th Cir. 2006) ............................................. 12
United States v. Atherton, 106 F.4th 888 (9th Cir. 2024)........................................... 23
United States v. Attar, 38 F.3d 727 (4th Cir. 1994) .................................................... 24
United States v. Bautista, 989 F.3d 698 (9th Cir. 2021) ............................................ 10
United States v. Belducea-Mancinas, 2022 WL 1223800 (5th Cir. Apr. 26, 2022).... 10
United States v. Bond, 414 F.3d 542 (5th Cir. 2005) .................................................. 22
United States v. Brown, 232 F.3d 399 (4th Cir. 2000) ............................................... 23
United States v. Chaney, 120 F.4th 1300 (5th Cir. 2024)........................................... 13
United States v. Chang, 2020 WL 8674183 (6th Cir. Apr. 23, 2020) ......................... 23
United States v. Gordon, 480 F.3d 1205 (10th Cir. 2007) .......................................... 18
United States v. Guillen, 561 F.3d 527 (D.C. Cir. 2009) ............................................ 27
United States v. Johnson, 347 F.3d 412 (2d Cir. 2003) .................................. 16, 23, 27
United States v. Khattak, 273 F.3d 557 (3d Cir. 2001) .................................. 16, 22, 24
United States v. Melancon, 972 F.2d 566 (5th Cir. 1992) .................................... 16, 19
United States v. Minor, 121 F.4th 1085 (5th Cir. 2024) ............................................. 10
United States v. Munafo, 123 F.4th 1373 (D.C. Cir. 2024) ........................................ 23
United States v. Mutschler, 152 F. Supp. 3d 1332 (W.D. Wash. 2016) ................ 19, 21
United States v. Navarro-Botello, 912 F.2d 318 (9th Cir. 1990) ................................ 16
United States v. Nulf, 978 F.3d 504 (7th Cir. 2020) ................................................... 23
United States v. Olano, 507 U.S. 725 (1993)......................................................... 16, 17
United States v. Porter, 405 F.3d 1136 (10th Cir. 2005) ............................................ 24
United States v. Rutan, 956 F.2d 827 (8th Cir. 1992) ................................................ 16
United States v. Snelson, 555 F.3d 681 (8th Cir. 2009).............................................. 22
United States v. Somner, 127 F.3d 405 (5th Cir. 1997) .............................................. 15
United States v. Stile, 845 F.3d 425 (1st Cir. 2017) ................................................... 26
United States v. Teeter, 257 F.3d 14 (1st Cir. 2001) ............................................. 16, 22
United States v. Vanderwerff, 2012 WL 2514933 (D. Colo. June 28, 2012) ........ 19, 21
United States v. Wiggins, 905 F.2d 51 (4th Cir. 1990) ............................................... 16
v
United States v. Williams, 949 F.3d 237 (5th Cir. 2020)............................................ 16
Williams v. United States, 396 F.3d 1340 (11th Cir. 2005)........................................ 24
Statutes
18 U.S.C. § 1951(a) ........................................................................................................ 9
18 U.S.C. § 2113 ............................................................................................................. 9
18 U.S.C. § 3742 ............................................................................................................. 8
28 U.S.C. § 1254 ............................................................................................................. 7
La. R.S. § 40:966 ............................................................................................................ 9
Other Authorities
Aliza Hochman Bloom, Sentence Appeal Waivers Should Not Be Enforced in the
Event of Superseding Supreme Court Law: The Durham Rule As Applied to
Appeal Waivers, 18 Fla. Coastal L. Rev. 113 (2016)............................................... 22
Andrew Dean, Challenging Appeal Waivers, 61 Buff. L. Rev. 1191 (2013) ............... 20
Honorable Robert J. Conrad & Katy L. Clements, The Vanishing Criminal Jury
Trial: From Trial Judges to Sentencing Judges, 86 Geo. Wash. L. Rev. 99 (2018)
.................................................................................................................................. 14
John C. Keeney, Justice Department Memo: Use of Sentencing Appeal Waivers to
Reduce the Number of Sentencing Appeals, 10 Fed. Sent. R. 209 (Jan./Feb. 1998)
.................................................................................................................................. 20
Susan R. Klein et al., Waiving the Criminal Justice System: An Empirical and
Constitutional Analysis, 52 Am. Crim. L. Rev. 73 (2015) ................................ 14, 15
vi
IN THE
Supreme Court of the United States
DEVIN CHANEY,
v.
Petitioner,
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
Petitioner Devin Chaney respectfully prays that a writ of certiorari issue to
review the judgment of the United States Court of Appeals for the Fifth Circuit.
JUDGMENT AT ISSUE
On November 8, 2024, a panel of the Fifth Circuit Court of Appeals dismissed
Mr. Chaney’s appeal based on an appeal waiver in his plea agreement. A copy of the
judgement and decision are attached to this petition as the Appendix.
JURISDICTION
The Fifth Circuit entered its decision on November 8, 2024, and no petition for
rehearing was filed. This Court has jurisdiction under 28 U.S.C. § 1254(1). This
petition for a writ of certiorari is timely filed pursuant to Supreme Court Rule 13
because it is being filed within 90 days of the Fifth Circuit’s final judgment.
7
STATUTORY PROVISION INVOLVED
18 U.S.C. § 3742(a) provides, in relevant part:
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
(4) was imposed for an offense for which there is no sentencing guideline
and is plainly unreasonable.
8
STATEMENT OF THE CASE
On October 25, 2022, Petitioner Devin Chaney pleaded guilty to committing a
Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a), and bank robbery, in violation
of 18 U.S.C. § 2113(a) and (d). Prior to sentencing, the U.S. Probation Office
calculated Mr. Chaney’s Sentencing Guidelines range, concluding that he qualified
as a “career offender” under U.S.S.G. § 4B1.1(a). That assessment was based, in
relevant part, on Probation’s determination that Mr. Chaney had a prior
“controlled substance offense,” i.e., his prior Louisiana state conviction for
distributing “marijuana,” in violation of La. R.S. § 40:966(B)(2)(a) (eff. Aug. 1, 2018,
through July 31, 2019). Application of the career-offender enhancement was hugely
impactful. As a result, Mr. Chaney’s Guidelines range increased by more than six
years—from 110-137 months to 188-235 months.
Mr. Chaney objected—pointing out that his Louisiana state conviction did not
qualify as a “controlled substance offense” under the Guidelines. He explained that,
at the time of his conviction, Louisiana’s definition of “marijuana” was broader than
the federal definition of that term because it included hemp. Mr. Chaney pointed out
that at least two Courts of Appeal already had ruled that state convictions involving
marijuana are not “controlled substance offenses” under the Guidelines if the state
definition of “marijuana” encompassed hemp at the time of the defendant’s
conviction.1 At the time of Mr. Chaney’s sentencing, the Fifth Circuit had not yet had
1 See United States v. Abdulaziz, 998 F.3d 519 (1st Cir. 2021) (holding that a 2014
conviction in Massachusetts state court for possession with intent to distribute marijuana
was not a “controlled substance offense” under the Sentencing Guidelines because the
Massachusetts definition of marijuana at the time of the prior conviction included hemp);
9
the occasion to reach the issue in a preserved posture, though it later did, ultimately
confirming that Mr. Chaney’s objection was correct and that prior marijuana
convictions like his cannot be used to apply the career-offender enhancement. See
United States v. Minor, 121 F.4th 1085 (5th Cir. 2024).
Following Mr. Chaney’s objection, Probation refused to remove the career
offender enhancement nor consider the authority presented by Mr. Chaney on the
subject. Indeed, Probation did not provide any substantive response to the defense’s
objection at all, instead summarily citing an unpunished Fifth Circuit decision that
had merely declined to reverse under the plain-error standard of appellate review.
See United States v. Belducea-Mancinas, No. 20-50929, 2022 WL 1223800 (5th Cir.
Apr. 26, 2022). That case held that a similar error—in an unpreserved appellate
posture—could not satisfy the “clear or obvious error” requirement of plain-error
review since the Fifth Circuit had not yet reached the specific question. The Court
did not hold, however, that the argument was wrong. Quite the opposite, Judge
Higginson concurred, explaining in great detail why applying the career-offender
enhancement based on a prior marijuana conviction like Mr. Chaney’s was, in fact,
sentencing error—just not plain error on appeal (yet). Id. at *2. Nonetheless,
Probation concluded that Mr. Chaney’s argument was wrong because the Fifth
Circuit “had never held” that it was right. In other words, Probation determined that
United States v. Bautista, 989 F.3d 698 (9th Cir. 2021) (holding that a district court plainly
erred in concluding that a 2017 marijuana conviction in Arizona was a “controlled substance
offense” because the state definition encompassed hemp, explaining that the state offense’s
“greater breadth is evident from the text”).
10
Mr. Chaney could not have his claim of error adjudicated at all because there was no
Fifth Circuit case directly on point.
Defense counsel filed a written response to Probation, explaining that the Fifth
Circuit plain-error decision had no bearing on the district court’s determination of a
legal question in the first instance and that the Fifth Circuit’s decision did not resolve
the question nor relieve the district court of the duty to reach it. Nonetheless, the
court at sentencing refused to address the merits of the impactful error identified by
Mr. Chaney. Instead, the court “overrule[d]” the objection to the career offender
enhancement, stating only that it found “the probation officer’s response to be
accurate regarding the defendant’s status as a career offender in accordance with
United States Sentencing Guidelines, Section 4B1.1.” The court did not address
Mr. Chaney’s argument that Probation had relied solely on inapposite Fifth Circuit
caselaw, nor did the court address the merits of the hemp-related argument. The
court then sentenced Mr. Chaney to a bottom-of-the-Guidelines sentence of 188
months’ imprisonment—over six years higher than the bottom of his properly
calculated Guidelines range.
Mr. Chaney filed a timely appeal, reraising the career-offender error as his sole
challenge to his sentence. Rather than defend Mr. Chaney’s sentence on the merits
or acknowledge his claimed error, the government simply moved to dismiss the
appeal based on the broad appeal waiver provision contained in Mr. Chaney’s plea
agreement. Specifically, that appeal waiver stated that Mr. Chaney “knowingly and
voluntarily”:
11
a. Waives and gives up any right to appeal or contest his sentence,
including any right to appeal any aspect of his sentence, including but
not limited to any and all rights which arise under 18 U.S.C. § 3742 and
28 U.S.C. § 1291.
b. Waives and gives up any right to challenge the manner in which his
sentence was determined and to challenge any U.S.S.G. determinations
and their application by any judge to the defendant’s sentence and
judgment.
Importantly, Mr. Chaney had entered into that agreement prior to sentencing
or issuance of his Presentence Report. Thus, he had no way of knowing at the time
that the career offender enhancement would be erroneously applied in his case—
despite authority counseling against it—nor, more importantly, that the district court
would entirely refuse to reach the merits of the error once alerted to it.
Nonetheless, based on the broad waiver (which is required in all standard plea
agreements in the Eastern District of Louisiana), the government argued that
Mr. Chaney “knowingly and voluntarily waived his right to appeal his sentence” and
that “the waiver covers his current challenge to the application of the Sentencing
Guidelines.” Though the government had discretion to permit Mr. Chaney’s appeal to
proceed, it insisted on enforcement of the waiver anyway. See Garza v. Idaho, 139 S.
Ct. 738, 745 (2019) (“[E]ven a waived appellate claim can still go forward if the
prosecution forfeits or waives the waiver.”); United States v. Acquaye, 452 F.3d 380,
382 (5th Cir. 2006) (recognizing that the government ordinarily urges waiver after
the appellant has filed a brief).
Mr. Chaney filed a response in opposition to dismissal. Mr. Chaney noted that
the Fifth Circuit had thus far declined to either adopt or reject a “miscarriage of
justice” exception to the enforcement of appeal waivers like his and that such an
12
exception was appropriate in his case. Mr. Chaney observed that numerous other
circuits had adopted “miscarriage of justice” frameworks and urged the Fifth Circuit
to do the same. He further argued that sentencing appeal waivers like the one in his
case are bad policy, harmful to the integrity of the criminal process, and inherently
unknowing and involuntary. He acknowledged that those challenges were foreclosed
under Fifth Circuit precedent, which long had held that appeal waivers like his are
presumptively valid.
The Fifth Circuit carried the government’s dismissal motion with the case and
required the parties to brief the issues raised in the appeal. Following oral argument,
however, the Fifth Circuit panel nonetheless dismissed Mr. Chaney’s claims without
reaching the merits of his appeal nor deciding one way or the other whether the
Circuit would recognize a “miscarriage of justice” exception similar to that adopted
by other courts. The court stated only: “We have not adopted a miscarriage-of-justice
exception for appeal waivers, and we decline to do so here.” United States v. Chaney,
120 F.4th 1300, 1303 (5th Cir. 2024).
REASONS FOR GRANTING THE PETITION
This Court must finally resolve the complex circuit conflict concerning appealwaiver enforcement, which is hopelessly entrenched and has resulted in wild
variability from circuit to circuit. The question of when appeal waivers should be
enforced is tremendously important—reaching vast numbers of criminal defendants
and directly affecting development of criminal law through appellate review.
Approximately ninety-seven percent of federal criminal defendants plead guilty
13
pursuant to plea agreements—agreements that often mandate broad waivers of not
just trial rights, but all appellate rights as well.2 But broad waivers like the one in
Mr. Chaney’s case are inherently unknowing and involuntary and, therefore, legally
dubious. Moreover, as commentators and judges alike have observed, this widespread
and compulsory waiver of appellate rights—especially those regarding yet-to-bemade sentencing errors—raises serious policy and fairness concerns, implicating not
only the fundamental rights of criminal defendants, but also the health of the
criminal process as a whole.
This Court has yet to weigh in on the issue of appeal waivers—thus far
declining to address the broader question of their permissibility and, more
specifically, the limits, if any, on their enforcement. Unsurprisingly, the circuits are
split over the limits on and exceptions to the enforcement of appeal waivers. That
split has led to confusion, unpredictability, and disparate treatment of similarly
situated individuals. Central to that split is the question of whether to recognize a
“miscarriage of justice” exception to appeal-waiver enforcement, and, if so, the
contours of such an exception. Absent intervention by this Court, this confusion and
conflict will persist. Moreover, if this Court permits appeal waivers to propagate
unabated as they have for decades, critical legal questions will continue to be
insulated from appellate scrutiny in criminal cases, and fundamental sentencing
2 See Missouri v. Frye, 566 U.S. 134, 144 (2012); Honorable Robert J. Conrad & Katy
L. Clements, The Vanishing Criminal Jury Trial: From Trial Judges to Sentencing Judges,
86 Geo. Wash. L. Rev. 99, 153 (2018); Susan R. Klein et al., Waiving the Criminal Justice
System: An Empirical and Constitutional Analysis, 52 Am. Crim. L. Rev. 73, 87, 122-26
(2015); see also Lafler v. Cooper, 132 S. Ct. 1376, 1388 (2012) (observing that “criminal justice
today is for the most part a system of pleas, not a system of trials.”).
14
errors by district courts will continue to go unchecked. Clarification from this Court
is urgently needed.
Mr. Chaney’s Petition presents an ideal vehicle for addressing these critically
important and long-neglected issues. Mr. Chaney’s case involved more than just a
run-of-the-mill Guidelines error. To the contrary, the district court abdicated its duty
at sentencing to resolve error brought to its attention. Certainly, in waiving the right
to appeal that court’s sentencing decisions, Mr. Chaney did not knowingly waive his
right to the fair and lawful adjudication of sentencing issues before the district court.
To the contrary, his waiver of appellate rights presumed a full and fair opportunity
to adjudicate issues at his sentencing hearing in compliance with due process. This
Court must intervene.
I.
This Court should finally weigh in on the constitutionality of
ubiquitous appeal waivers like the one in this case—which are
inherently unknowing and involuntary.
Despite their widespread use—and associated widespread criticism—this
Court “has not yet ruled on the constitutionality of plea agreement waivers of the
statutory right to . . . direct appeal of sentence after conviction by plea.” Klein, supra
note 1, at 81. Circuit courts, for the most part, have allowed these waivers to
proliferate relatively unabated, with few defined limits on their enforcement. “The
established law” of the Fifth Circuit “provides that a defendant may, by knowingly
and voluntarily entering into a valid plea agreement, waive the statutory right to
appeal his sentence,” including the right to appeal errors in the district court’s
calculation of his Sentencing Guidelines range. United States v. Somner, 127 F.3d
405, 408-09 (5th Cir. 1997) (Jolly, J., concurring); see also, e.g., United States v.
15
Williams, 949 F.3d 237, 239 (5th Cir. 2020). Other Circuits agree. See, e.g., United
States v. Khattak, 273 F.3d 557, 561 (3d Cir. 2001); United States v. Rutan, 956 F.2d
827, 829 (8th Cir. 1992), overruled in part by United States v. Andis, 333 F.3d 886,
892 n.6 (8th Cir. 2003); United States v. Navarro-Botello, 912 F.2d 318, 321 (9th Cir.
1990); United States v. Wiggins, 905 F.2d 51, 52‒54 (4th Cir. 1990).
In enforcing appeal waivers, courts have reasoned that, because defendants
may waive constitutional rights, they also may waive the statutory right to appeal a
sentence.3 But the analogy courts have drawn between sentencing-related appeal
waivers and the waiving of constitutional rights by pleading guilty is fundamentally
flawed and has been rightly criticized because the constitutional rights waived by a
guilty plea are known at the time they are waived:
[O]ne waives the right to silence, and then speaks; one waives the right
to have a jury determine one’s guilt, and then admits his or her guilt to
the judge. In these cases, the defendant knows what he or she is about
to say, or knows the nature of the crime to which he or she pleads guilty.
United States v. Melancon, 972 F.2d 566, 571 (5th Cir. 1992) (Parker, J., concurring).
In that context, due process is satisfied because the waiver is an intentional, knowing
“relinquishment or abandonment of a known right or privilege.” Johnson v. Zerbst,
304 U.S. 458, 464 (1938); see also United States v. Olano, 507 U.S. 725, 732‒33 (1993);
3 See, e.g., Andis, 333 F.3d at 889 (“[T]he right to appeal is not a constitutional right
but rather purely a creature of statute. . . . Given that the Supreme Court has allowed a
defendant to waive constitutional rights, we would be hard-pressed to find a reason to
prohibit a defendant from waiving a purely statutory right.” (internal quotation marks
omitted)); Khattak, 273 F.3d at 561 (“The ability to waive statutory rights, like those provided
in 18 U.S.C. § 3742, logically flows from the ability to waive constitutional rights.”); United
States v. Teeter, 257 F.3d 14, 21-22 (1st Cir. 2001) (“[T]he idea of permitting presentence
waivers of appellate rights seems relatively tame because the right to appeal in a criminal
case is not of constitutional magnitude.”).
16
Boykin v. Alabama, 395 U.S. 238, 243 n.5 (1969).
By contrast, sentencing-related appeal waivers are made at the time of the plea
and therefore lack the essential prerequisite for waiver: contemporaneous knowledge
of the rights being relinquished. Defendants enter into appeal waiver agreements
long before sentencing occurs, and those waivers often are made, as here, with no
agreement between the parties regarding the sentence the defendant might receive
or even the Sentencing Guidelines range that will apply. At that moment, the right
to appeal has not yet accrued, and the sentencing errors have not yet occurred. There
can be no waiver without knowledge of the right waived. Cf. Newton v. Rumery, 480
U.S. 386, 390‒403 (1987) (approving waiver of right to bring civil suit for false arrest
and imprisonment, when right to sue had already accrued).
A defendant cannot preserve sentencing errors for review by making a blanket
objection at rearraignment to any prospective error in the court’s application of the
Guidelines or balancing of the applicable sentencing factors. See Fed. R. App. P. 51(b)
(requiring an objection “when the court ruling or order is made or sought”); Puckett
v. United States, 556 U.S. 129, 135 (2009) (describing Rule 51(b) as a
“contemporaneous-objection rule”). Conversely, a defendant cannot waive—i.e.,
knowingly and intentionally relinquish—the right to have such an error corrected
without first knowing what the error is. See Olano, 507 U.S. at 733. Moreover, it is
unreasonable to expect a defendant to anticipate—and thus “know”—whether errors
will be made in calculating a sentence, much less the severity of those errors’ impact.
To the contrary, a defendant presumes that a sentencing court will follow the law and
17
basic constitutional tenants when rendering a sentencing determination. United
States v. Gordon, 480 F.3d 1205, 1210 (10th Cir. 2007) (“[W]e should presume that
all promises made were legal, and that the non-contracting ‘party’ who implements
the agreement (the district judge) will act legally in executing the agreement.”
(internal citations and quotation marks omitted)). And, at base, a defendant cannot
have concrete knowledge of what is ceded when supposedly waiving the right to
appeal a sentence. Thus, sentencing-related appeal waivers are inherently
unknowing.
Sentencing-related appeal waivers are also involuntary in federal jurisdictions
like the Eastern District of Louisiana, where prosecutors inflexibly mandate that plea
agreements include broad, boilerplate waivers of this important statutory right. As
has become standard practice in criminal cases in the Eastern District of Louisiana,
Mr. Chaney’s plea agreement required him to waive all appellate and collateral relief
rights except an attack on a sentence imposed in excess of the statutory maximum or
a claim of ineffective assistance of counsel. This is the broadest and most restrictive
appeal waiver permitted by law and U.S. Department of Justice Policy.4 By
incorporating these waivers into every plea agreement and requiring defendants to
assent to the agreement’s terms to accept any plea deal—even when those waivers
4 See U.S. Dep’t of Justice, “Department Policy on Waivers of Claims of Ineffective
Assistance of Counsel,” Oct. 14, 2014, https://www.justice.gov/file/70111/download
(prohibiting federal prosecutors from seeking in plea agreements to have a defendant waive
any claims of ineffective assistance of counsel); U.S. Dep’t of Justice, U.S. Attorney’s Manual,
CRM § 626, “Plea Agreements and Sentencing Appeal Waivers—Discussion of the Law”
(detailing various arguments on appeal that cannot legally be waived, including challenges
to sentences exceeding the statutory maximum).
18
were not part of the bargained-for exchange—the government is compelling
defendants to waive their appeal rights for no benefit.
Many judges and commentators have expressed dismay over this trend, noting
the serious legal and policy concerns raised by the widespread, compelled waiver of
appellate rights. For example, these broad appeal waivers require defendants to
waive serious errors that they could not have anticipated at the time of
relinquishment; arise from inherently inequitable bargaining positions; reduce
incentives for careful sentencing and strict compliance with the Sentence Guidelines;
insulate serious errors from review and correction; leave difficult legal questions
unanswered; and otherwise inhibit development of the law. See, e.g., Melancon, 972
F.2d at 573 (Parker, J., concurring) (“[E]ven if I were convinced that the sort of
futuristic waiver at issue in this case could be knowing and intelligent, I could not
support it. Any systemic benefits that might inhere in this type [of] waiver cannot
overcome its extremely deleterious effects upon judicial and congressional integrity,
and individual constitutional rights.”); United States v. Mutschler, 152 F. Supp. 3d
1332, 1339 (W.D. Wash. 2016) (“Although the Court would not intentionally impose
an improper sentence, the Court is not infallible and, in the course of formulating a
sentence, the Court is often faced with issues on which reasonable minds can differ.
The criminal justice system is not improved by insulating from review either simple
miscalculations or novel questions of law.”); United States v. Vanderwerff, No. 12-cr69, 2012 WL 2514933, at *5 (D. Colo. June 28, 2012) (“Indiscriminate acceptance of
appellate waivers undermines the ability of appellate courts to ensure the
19
constitutional validity of convictions and to maintain consistency and reasonableness
in sentencing decisions.”); Editorial, Trial Judge to Appeals Court: Review Me, N.Y.
Times, July 17, 2012, at A24 (“Congress gave appeals courts the power to review
federal sentences to ensure the government applies the law reasonably and
consistently. Without an appeals court’s policing, the odds go up that prosecutors will
do neither. Our system of pleas then looks more like a system of railroading.”);
Andrew Dean, Challenging Appeal Waivers, 61 Buff. L. Rev. 1191, 1211 (2013) (“The
lack of bargaining equality between the defense and prosecution has led some judges
to reject appeal waivers as contracts by adhesion. Because conditioning the plea
agreement on acceptance of an appeal waiver skews the balance so far in the
prosecution's favor, the defendant has no hope at achieving equal bargaining power.
This renders the contract unconscionable.”); John C. Keeney, Justice Department
Memo: Use of Sentencing Appeal Waivers to Reduce the Number of Sentencing
Appeals, 10 Fed. Sent. R. 209, 210 (Jan./Feb. 1998) (“The disadvantage of the broad
sentencing appeal waiver is that it could result in guideline-free sentencing of
defendants in guilty plea cases, and it could encourage a lawless district court to
impose sentences in violation of the guidelines. It is imperative to guard against the
use of waivers of appeal to promote circumvention of the sentencing guidelines.”).
Of course, some courts long have pointed to the institutional benefits of appeal
waivers—most commonly, conservation of resources and finality. However, as one
district court observed, these benefits may be overblown:
Any suggestion that unilateral waivers of the right to appeal promote
finality is disingenuous. Finality is not secured simply because only the
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Government, and not the defendant, is entitled to appeal. Moreover, to
the extent the Government’s motive is merely to reduce the burden of
appellate and collateral litigation on sentencing issues, the avenue for
achieving such finality is explicitly contemplated in Rule 11(c)(1)(C),
pursuant to which the Government may agree to a specific [Sentencing
Guidelines] range and bind both the defendant and the Court.
Mutschler, 152 F. Supp. 3d at 1340 (internal citations omitted).
Moreover, use of appeal waivers in every plea agreement—or, at least, virtually
all of them, as occurs in the Eastern District of Louisiana—does not merely reduce
direct criminal appeals—it threatens to eliminate them. No doubt, some balance must
be struck between the interests of resource management and finality on the one hand,
and, on the other, the statutory right to appeal with all of its benefits, such as error
correction, guidance for lower courts, and just results. The former cannot be allowed
to consume the latter. Vanderwerff, 2012 WL 2514933, at *4 (“Prioritizing efficiency
at the expense of the individual exercise of constitutional rights applies to the guilty
and the innocent alike, and sacrificing constitutional rights on the altar of efficiency
is of dubious legality.”).
This Court must finally acknowledge and address the widespread practice of
blanket appellate waivers.
II.
This Court should resolve the entrenched and chaotic circuit split
over appeal waiver enforcement, which long has resulted in
inconsistent treatment of criminal appellants.
Appeal waivers like the one in this case are ubiquitous across the country, and,
although appellate courts recognize their validity as a general matter, the limits
courts have set on such waivers and the situations in which courts refuse to enforce
them varies wildly by circuit. As one commentator observed, “[i]n the absence of
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Supreme Court precedent guiding the enforcement of appeal waivers, . . . various
courts of appeal have created their own limits and exceptions to their enforcement.”
Aliza Hochman Bloom, Sentence Appeal Waivers Should Not Be Enforced in the Event
of Superseding Supreme Court Law: The Durham Rule As Applied to Appeal Waivers,
18 Fla. Coastal L. Rev. 113 (2016). This means that a defendant in one circuit may be
permitted to proceed with an appeal—and have a sentencing error remedied—while
an identically situated defendant in another circuit will be deprived of that right
entirely. This inconsistency and uncertainty is evident in the various, diverse
frameworks courts have developed to examine the validity of appeal waivers. See
generally, id. at 116–22 (outlining the split). The Fifth Circuit, for example, has
adopted a two-step inquiry. The court first asks “(1) whether the waiver was knowing
and voluntary,” and then determines “(2) whether the waiver applies to the
circumstances at hand, based on the plain language of the agreement.” United States
v. Bond, 414 F.3d 542, 544 (5th Cir. 2005). The inquiry ends there, and the court thus
far has refused to examine any other exceptions to a waiver’s enforcement.
By contrast, some appellate courts conduct a third step, inquiring whether the
court’s failure to consider the defendant’s claim will result in a “miscarriage of
justice.” See, e.g., United States v. Snelson, 555 F.3d 681, 685 (8th Cir. 2009); Khattak,
273 F.3d at 562–63; Teeter, 257 F.3d at 25. The First, Third, and Tenth Circuits have
recognized some version of this “miscarriage of justice” exception to the enforcement
of appeal waivers and have established frameworks for making that determination.
See, e.g., Teeter, 257 F.3d at 25; Khattak, 273 F.3d at 562-63; United States v. Porter,
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405 F.3d 1136, 1142 (10th Cir. 2005). The Ninth Circuit has similarly recognized such
an exception, though it does not necessarily use that term to describe its review of
appeal waiver enforcement. See, e.g., United States v. Atherton, 106 F.4th 888, 896
(9th Cir. 2024). The Second, Fourth, Sixth, Seventh, Eighth, and D.C. Circuits have
exercised discretion to refuse to enforce otherwise valid appeal waivers (sometimes
using the term “miscarriage of justice”), but the contours of the exceptions those
courts apply are not well defined. See, e.g., United States v. Johnson, 347 F.3d 412,
415 (2d Cir. 2003); United States v. Brown, 232 F.3d 399, 403 (4th Cir. 2000); United
States v. Chang, No. 19-1478, 2020 WL 8674183, at *1 (6th Cir. Apr. 23, 2020); United
States v. Nulf, 978 F.3d 504, 505 (7th Cir. 2020); Snelson, 555 F.3d at 685; United
States v. Munafo, 123 F.4th 1373, 1381 (D.C. Cir. 2024). The Eleventh Circuit, like
the Fifth Circuit, has declined to address the issue. See, e.g., Rudolph v. United
States, 92 F.4th 1038, at 1048 (11th Cir. 2024).
These various, recognized exceptions to appeal-waiver enforcement have
proved “infinitely variable.” Teeter, 257 F.3d at 25 n.9. Indeed, how courts define the
“miscarriage of justice” term—and how they apply it—differs tremendously from
circuit to circuit. For example, the First Circuit holds broadly that even knowing and
voluntary appeal waivers should not be enforced in “egregious cases” and “are subject
to a general exception under which the court of appeals retains inherent power to
relieve the defendant of the waiver, albeit on terms that are just to the government,
where a miscarriage of justice occurs.” Id. at 25-26. The Tenth Circuit has limited the
“miscarriage of justice” exception to four discrete circumstances:
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(1) reliance by the court upon an impermissible factor such as race in
imposition of the sentence; (2) ineffective assistance of counsel in
connection with the negotiation of the waiver; (3) the sentence exceeds
the statutory maximum; or (4) the waiver is otherwise unlawful and
seriously affects the fairness, integrity, or public reputation of judicial
proceedings.
Porter, 405 F.3d at 1143. The Third Circuit, while declining to adopt a bright-line
rule, considers certain factors (first articulated by the First Circuit), such as:
the clarity of the error, its gravity, its character (e.g., whether it
concerns a fact issue, a sentencing guideline, or a statutory maximum),
the impact of the error on the defendant, the impact of correcting the
error on the government, and the extent to which the defendant
acquiesced in the result.
Khattak, 273 F.3d at 562.
Of particular concern, appellate courts do not even seem to agree about
whether an appeal waiver properly can be applied to exclude direct or collateral
claims of ineffective assistance of counsel. Compare, e.g., Hurlow v. United States,
726 F.3d 958, 964, 966 (7th Cir. 2013) (“[A] direct or collateral review waiver does not
bar a challenge regarding the validity of a plea agreement (and necessarily the waiver
it contains) on grounds of ineffective assistance of counsel.”), and United States v.
Attar, 38 F.3d 727, 729 (4th Cir. 1994) (holding that a general waiver of appellate
rights cannot be construed as waiving claims of ineffective assistance of counsel), with
Williams v. United States, 396 F.3d 1340, 1342 (11th Cir. 2005) (holding that an
appeal waiver precluded a collateral claim of ineffective assistance of counsel and
urging that “a contrary result would permit a defendant to circumvent the terms of
the sentence-appeal waiver simply by recasting a challenge to his sentence as a claim
of ineffective assistance, thus rendering the waiver meaningless”). As this Court has
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observed, though: “[A]ll jurisdictions appear to treat at least some claims as
unwaiveable.” Garza, 586 U.S. at 239. “Most fundamentally, courts agree that
defendants retain the right to challenge whether the waiver itself is valid and
enforceable—for example, on the grounds that it was unknowing or involuntary.” Id.
The broad appeal waiver in Mr. Chaney’s plea agreement—which encompassed
all challenges to the Guidelines and manner in which his sentence was determined—
is unjust, unknowing, and involuntary, as discussed above. But even if this Court
ultimately determines that appeal waivers like Mr. Chaney’s generally are lawful,
there should at least be uniform rules governing their enforcement and
interpretation, including whether and when appellate courts should review a
challenged sentencing error notwithstanding the existence of an applicable appeal
waiver. The Court’s guidance is urgently needed to clarify those rules, which impact
scores of criminal defendants.
III.
This case is an ideal vehicle for this Court to address appeal
waivers—and Mr. Chaney’s circumstances similarly present an
ideal opportunity to apply the “miscarriage of justice” exception.
This Court should also grant certiorari in this case because Mr. Chaney’s
circumstances present an ideal vehicle for this Court to address the validity and
enforceability of sentencing-related appeal waivers. Mr. Chaney fully preserved these
arguments in opposition to enforcement of his appeal waiver below, and, thus, these
issues are cleanly presented for this Court’s consideration.
Not only that, Mr. Chaney’s case is an ideal lens through which to examine the
serious issues arising from broad (and blind) waivers of appellate rights. This was
not just a case in which the district court was wrong (and, no doubt, it was). Far
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worse, the judge did not consider or adjudicate the merits of the error brought to its
attention at all. That was not a run-of-the-mill Guidelines mistake—it was a full
abdication of the court’s duty at sentencing and a serious deprivation of Mr. Chaney’s
due process rights. “Certainly a defendant has a right to due process at sentencing.”
United States v. Stile, 845 F.3d 425, 430 (1st Cir. 2017). And “[t]he fundamental
requirement of due process is the opportunity to be heard ‘at a meaningful time and
in a meaningful manner.’” Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (emphasis
added) (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)); see also Logan v.
Zimmerman Brush Co., 455 U.S. 422, 433 (1982) (“As our decisions have emphasized
time and again, the Due Process Clause grants the aggrieved party the opportunity
to present his case and have its merits fairly judged.”). Thus, “[a]fter conviction . . .
[a defendant] retains an interest in a sentencing proceeding that is fundamentally
fair.” United States v. Abreu, 202 F.3d 386, 391 (1st Cir. 2000). “This right is protected
both by the Fifth Amendment and by Federal Rule of Criminal Procedure 32.” Stile,
845 F.3d at 430.
Certainly, in waiving the right to appeal sentencing decisions, a defendant does
not intend to waive—i.e., knowingly relinquish—the right to the fair and lawful
adjudication of sentencing issues before the district court. To the contrary, appellate
waivers presume a full and fair opportunity to adjudicate issues at sentencing in
compliance with due process—understanding that the outcome may not be in the
defendant’s favor. See, e.g., Gordon, 480 F.3d at 1210. That is because waiver is “an
intentional relinquishment or abandonment of a known right or privilege,” and courts
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“do not presume acquiescence in the loss of fundamental rights.” Johnson v. Zerbst,
304 U.S. 458, 464 (1938). In other words, when waiving the right to appeal, a
defendant does not waive the right to fair sentencing entirely—he simply waives
review of errors that arose following fair sentencing procedure. And the obvious
expectation of all parties upon entry of that agreement is that the sentence will be
imposed “under fair procedures” and that the sentencing judge will comply with the
obligation to properly adjudicate material, disputed issues—seeking to correct errors
when they are brought to the court’s attention. United States v. Guillen, 561 F.3d 527,
530 (D.C. Cir. 2009). Appellate waivers do not relieve district courts of “their
obligations to satisfy applicable constitutional requirements,” and appeal waivers
cannot be enforced when district courts simply fail to do so. Id.
In sum, Mr. Chaney’s case illustrates the very situation in which appeal
waivers like these should be considered unknowing and involuntary or, at the very
least, should be held to constitute a miscarriage of justice. As the First Circuit has
explained, appeal waivers “are meant to bring finality to proceedings conducted in
the ordinary course, not to leave acquiescent defendants totally exposed to future
vagaries (however harsh, unfair, or unforeseeable).” Teeter, 257 F.3d at 25.
Resolution of these critical issues is long overdue. And Mr. Chaney’s case
represents an ideal opportunity to finally resolve the reoccurring and broadly
impactful questions presented in this Petition.
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CONCLUSION
For the foregoing reasons, this Court should grant Mr. Chaney’s petition for
writ of certiorari.
Respectfully submitted,
CLAUDE J. KELLY
FEDERAL PUBLIC DEFENDER
EASTERN DISTRICT OF LOUISIANA
/s/Celia Rhoads
CELIA C. RHOADS
ASSISTANT FEDERAL PUBLIC DEFENDER
Counsel of Record
500 Poydras Street, Suite 318
Hale Boggs Federal Building
New Orleans, Louisiana 70130
(504) 589-7930
celia_rhoads@fd.org
FEBRUARY 2025
Counsel for Petitioner
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.