Petition for Writ of Certiorari — Gregory Johnson, Jr., Petitioner v. United States

No. 25-A-552

IN THE

SUPREME COURT OF THE UNITED STATES

___________

GREGORY JOHNSON,

Petitioner,

v.

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

___________

STUART KOTTLE

COUNSEL OF RECORD

KAYLYN B. HANDY

SHER GARNER CAHILL RICHTER

KLEIN & HILBERT, L.L.C.

909 POYDRAS STREET, SUITE 2800

NEW ORLEANS, LA 70118

TEL: (504) 299-2100

EMAIL: SKOTTLE@SHERGARNER.COM

KHANDY@SHERGARNER.COM

COUNSEL FOR PETITIONER

QUESTIONS PRESENTED

Petitioner Gregory Johnson’s appeal to the Fifth Circuit was wrongfully

dismissed because the record cannot demonstrate a knowing and voluntary waiver of

a sentence that constitutes a miscarriage of justice.

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. Johnson’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:

1. United States v. Johnson, No. 2:22-00096, U.S. District Court for the Eastern

District of Louisiana. Judgment entered July 11, 2024.

2. United States v. Johnson, No. 24-30442, U.S. Court of Appeals for the Fifth

Circuit. Judgment entered August 15, 2025.

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED .......................................................................................... ii

RELATED PROCEEDINGS......................................................................................... iii

TABLE OF AUTHORITIES .......................................................................................... v

JUDGMENT AT ISSUE ................................................................................................ 1

JURISDICTION............................................................................................................. 1

STATUTORY PROVISION INVOLVED ...................................................................... 2

STATEMENT OF THE CASE....................................................................................... 3

REASONS FOR GRANTING THE PETITION ............................................................ 6

I.

This Court should weigh in on the constitutionality of appeal waivers that are

unknowing and involuntary. ..................................................................................... 8

II.

This Court should resolve the circuit split over the disparate enforcement of

appeal waivers. ......................................................................................................... 13

III.

Mr. Johnson’s circumstances present an ideal opportunity to apply the

“miscarriage of justice” exception to the enforcement of appeal waiver. ............... 17

CONCLUSION............................................................................................................. 20

iv

TABLE OF AUTHORITIES

Cases

Armstrong v. Manzo,

380 U.S. 545 (1965) .................................................................................................. 17

Borden v. United States,

593 U.S. 420 (2021) .................................................................................................... 3

Boykin v. Alabama,

395 U.S. 238 (1969) .................................................................................................... 9

Devin Chaney v. United States of America, No. 24-6543 (U.S. petition for cert. filed

Feb. 6, 2025)................................................................................................................ 6

Garza v. Idaho,

139 S. Ct. 738 (2019) ............................................................................................ 5, 16

Hurlow v. United States,

726 F.3d 958 (7th Cir. 2013) .................................................................................... 16

Johnson v. Zerbst,

304 U.S. 458 (1938)

9, 18

Lafler v. Cooper,

132 S. Ct. 1376 (2012) ................................................................................................ 7

Logan v. Zimmerman Brush Co.,

455 U.S. 422 (1982) .................................................................................................. 17

Mathews v. Eldridge,

424 U.S. 319 (1976) .................................................................................................. 17

Missouri v. Frye,

566 U.S. 134 (2012) .................................................................................................... 7

Newton v. Rumery,

480 U.S. 386 (1987) .................................................................................................... 9

Puckett v. United States,

556 U.S. 129 (2009) .................................................................................................. 10

Rudolph v. United States,

92 F.4th 1038 (11th Cir. 2024) ................................................................................. 15

United States v. Abreu,

202 F.3d 386 (1st Cir. 2000) ..................................................................................... 17

United States v. Acquaye,

452 F.3d 380 (5th Cir. 2006) ...................................................................................... 5

United States v. Atherton,

106 F.4th 888 (9th Cir. 2024) ................................................................................... 14

United States v. Attar,

38 F.3d 727 (4th Cir. 1994) ...................................................................................... 16

United States v. Bond,

414 F.3d 542 (5th Cir. 2005) .................................................................................... 14

v

United States v. Brown,

232 F.3d 399 (4th Cir. 2000) .................................................................................... 14

United States v. Chang,

No. 19-1478, 2020 WL 8674183 (6th Cir. Apr. 23, 2020) ........................................ 14

United States v. Garner,

28 F.4th 678 (5th Cir. 2022) ....................................................................................... 3

United States v. Gordon,

480 F.3d 1205 (10th Cir. 2007) .......................................................................... 10, 18

United States v. Guillen,

561 F.3d 527 (D.C. Cir. 2009)................................................................................... 18

United States v. Johnson,

2025 WL 2375233 (5th Cir. Aug. 15, 2025) ............................................................... 6

United States v. Johnson,

347 F.3d 412 (2d Cir. 2003) ...................................................................................... 14

United States v. Johnson, No. 24-30442, U.S. Court of Appeals for the Fifth Circuit

.................................................................................................................................... iii

United States v. Johnson,,

No. 2:22-00096, U.S. District Court for the Eastern District of Louisiana ............. iii

United States v. Khattak,

273 F.3d 557 (3d Cir. 2001) ............................................................................ 8, 14, 16

United States v. Melancon,

972 F.2d 566 (5th Cir. 1992) ................................................................................ 9, 11

United States v. Munafo,

123 F.4th 1373 (D.C. Cir. 2024) ............................................................................... 15

United States v. Mutschler,

152 F. Supp. 3d 1332 (W.D. Wash. 2016) .......................................................... 11, 13

United States v. Navarro-Botello,

912 F.2d 318 (9th Cir. 1990) ...................................................................................... 8

United States v. Nulf,

978 F.3d 504 (7th Cir. 2020) .................................................................................... 15

United States v. Olano,

507 U.S. 725 (1993) .............................................................................................. 9, 10

United States v. Porter,

405 F.3d 1136 (10th Cir. 2005) .......................................................................... 14, 15

United States v. Rutan,

956 F.2d 827 (8th Cir. 1992) ...................................................................................... 8

United States v. Snelson,

555 F.3d 681 (8th Cir. 2009) .............................................................................. 14, 15

United States v. Somner,

127 F.3d 405 (5th Cir. 1997) ...................................................................................... 8

United States v. Stile,

845 F.3d 425 (1st Cir. 2017) ..................................................................................... 17

United States v. Teeter,

257 F.3d 14 (1st Cir. 2001) ....................................................................... 9, 14, 15, 18

vi

United States v. Vanderwerff,

No. 12-cr-69, 2012 WL 2514933 (D. Colo. June 28, 2012) ................................ 12, 13

United States v. Wiggins,

905 F.2d 51 (4th Cir. 1990) ........................................................................................ 8

United States v. Williams,

949 F.3d 237 (5th Cir. 2020) ...................................................................................... 8

Williams v. United States,

396 F.3d 1340 (11th Cir. 2005) ................................................................................ 16

Federal Statutes

18 U.S.C. § 3742(a)................................................................................................................................. 10, 16

21 U.S.C. § 841(b)(1)(B) ............................................................................................................................... 11

21 U.S.C. § 846 ................................................................................................................................................. 11

21 U.S.C. § 841(a)(1) ...................................................................................................................................... 11

28 U.S.C. § 1254(1)............................................................................................................................................ 9

Title 18, United States Code, Section 3582(c)(2) ........................................................................... 13

Title 28, United States Code, Section 1291 ...................................................................................... 12

Federal Rules

Fed. R. App. P. 51(b) ..................................................................................................................................... 18

Federal Rule of Criminal Procedure 32 .............................................................................................. 26

Federal Regulations

U.S. Sent’g Comm’n, Guidelines Manual § 4B1.1(b) ................................................................... 11

vii

Other Authorities

Andrew Dean, Challenging Appeal Waivers, 61 Buff. L. Rev. 1191 (2013) .................... 20

Editorial, Trial Judge to Appeals Court: Review Me, N.Y. Times,

July 17, 2012, at A24 ................................................................................................................................ 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)......................................................................................................... 15

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

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) ............................................................... 21

Susan R. Klein et al, Waiving the Criminal Justice System: An Empirical and

Constitutional Analysis, 52 Am. Crim. L. Rev. 73 (2015) .................................................... 15

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 .............................................................................. 19

U.S. Dep’t of Justice, U.S. Attorney’s Manual, CRM § 626, “Plea Agreements and

Sentencing Appeal Waivers—Discussion of the Law” ........................................................... 19

viii

IN THE

SUPREME COURT OF THE UNITED STATES

___________

GREGORY JOHNSON,

Petitioner

v.

UNITED STATES OF AMERICA

Respondent.

___________

PETITION FOR WRIT OF CERTIORARI

___________

Petitioner Gregory Johnson 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 August 15, 2025, a panel of the Fifth Circuit Court of Appeals dismissed

Mr. Johnson’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 August 15, 2025, 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.

1

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.

2

STATEMENT OF THE CASE

On April 4, 2024, Mr. Johnson pleaded guilty to conspiracy to distribute and

possess with intent to distribute five hundred (500) grams or more of cocaine

hydrochloride, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846.

Prior to sentencing, the U.S. Probation Office prepared a draft Presentence

Investigation Report (“PSR”) for Mr. Johnson. The draft PSR recommended a

guideline sentence ranging from 188 to 235 months (15 years, 8 months to 19 years,

7 months), based on a total offense level of 31 and a criminal history category of IV.

The U.S. Probation Office determined that Mr. Johnson qualified as a “career

offender” under U.S. SENT’G COMM’N, GUIDELINES MANUAL § 4B1.1(b), partly due to

his 1997 armed robbery conviction in Louisiana.

Mr. Johnson objected to his designation as a “career offender” in the PSR,

arguing that one of his two prior convictions should not qualify as a “crime of

violence.” As argued in the objection, Louisiana law categorizes armed robbery as a

general intent offense, which can be committed recklessly or even negligently. As a

result, Mr. Johnson’s armed robbery conviction under Louisiana law does not qualify

as a “crime of violence” under that definition because offenses that can be committed

with a mens rea no greater than recklessness cannot qualify as a “crime of violence”

under the Guidelines. Borden v. United States, 593 U.S. 420 (2021); United States v.

Garner, 28 F.4th 678 (5th Cir. 2022). His prior armed robbery conviction cannot

justify designating him as a career offender. Without the career offender

enhancement, his total offense level would have been 28 and his criminal history

3

category III, resulting in a Guidelines range of 70 to 87 months (5 years, 10 months

to 7 years, 3 months). Application of the career offender enhancement was hugely

impactful: Mr. Johnson’s Guidelines range increased by 118 to 148 additional months

(9 years, 10 month to 12 years, 4 months), and Mr. Johnson was sentenced to 140

months (11 years, 8 months) of confinement.

The government responded by referencing outdated or inapplicable Fifth

Circuit cases that recognize Louisiana armed robbery as a “crime of violence” under

the Guidelines. The U.S. Probation Office reviewed Mr. Johnson’s objection and the

government’s reply but did not rescind the career offender designation.

At the sentencing hearing, the District Court acknowledged that Mr. Johnson’s

arguments “hold some merit” and “c[ould] be argued both ways.” Nevertheless, the

District Court overruled the objection, affirming that armed robbery constitutes a

“crime of violence” under the Guidelines and thus upholding the career offender

designation.

Mr. Johnson filed a timely appeal, raising the career offender error as his sole

assignment of error and challenge to his sentence. The government moved to dismiss

the appeal based upon the broad appeal waiver provision contained in Mr. Johnson’s

plea agreement. The plea agreement stated that Mr. Johnson “knowingly and

voluntarily”:

a. Waives and gives up any right to appeal or contest his [. . .] sentence

[. . .], including but not limited to any right to appeal any rulings on

pretrial motions of any kind whatsoever, as well as any aspect of his

sentence, including but not limited to any and all rights which arise

under Title 18, United States Code, Section 3742 and Title 28, United

States Code, Section 1291.

4

b. Waives and gives up any right to appeal any order, decision, or

judgment arising out of or related to Title 18, United States Code,

Section 3582(c)(2) imposed by any judge and further waives and gives

up any right to challenge the manner in which his sentence is

determined and to challenge any United States Sentencing

Guidelines determinations and their application by any judge to the

defendant’s sentence and judgment.

Mr. Johnson entered into the agreement prior to sentencing or the issuance of

his Presentence Report. He had no way of knowing at the time that the career

offender enhancement would be applied in his case nor that the District Court would

overrule his objection to the enhancement.

Based on the broad waiver (which is required in all standard plea agreements

in the Eastern District of Louisiana), the government argued that Mr. Johnson

“knowingly and voluntarily waived his right to appeal his sentence.” Though the

government had discretion to permit Mr. Johnson’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. Johnson filed a response in opposition to the motion to dismiss. Mr.

Johnson 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 exception was appropriate in his case. Mr. Johnson observed that

numerous other circuits had adopted “miscarriage of justice” frameworks and urged

5

the Fifth Circuit to do the same. He further argued that sentencing appeal waivers

like the one in his case lack the necessary condition for a valid waiver: the defendant’s

contemporaneous understanding of the rights that he or she is giving up. Mr. Johnson

could not have known that the waiver would also foreclose his right to challenge an

appeal that, based on the specific facts and legal error in his case, constitutes a

miscarriage of justice.

The Fifth Circuit granted the government’s motion to dismiss, stating “this

court does not recognize a miscarriage-of-justice exception to an appeal waiver.”

United States v. Johnson, 2025 WL 2375233 (5th Cir. Aug. 15, 2025).

REASONS FOR GRANTING THE PETITION

This Court must resolve the complex circuit conflict concerning appeal-waiver

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. Indeed, the Court

is already reviewing a Petition for Writ of Certiorari that is substantially

similar to Mr. Johnson’s: Devin Chaney v. United States of America, No. 246543 (U.S. petition for cert. filed Feb. 6, 2025). In both Mr. Johnson’s case and in

Mr. Chaney’s case, the draft PSR erroneously recommended a career offender

enhancement that vastly increased the confinement range under the Guidelines. In

both cases, the district court denied the defendants’ objections to the erroneous career

offender enhancement, constituting miscarriages of justice.

6

Most federal criminal defendants plead guilty pursuant to plea agreements

that often mandate broad waivers of not just trial rights, but all appellate rights as

well.1 But broad waivers like the one in Mr. Johnson’s case are inherently unknowing

and involuntary. This Court has yet to weigh in on the issue of appeal waivers, even

though circuits are split over the limits on and exceptions to the enforcement of

appeal waivers.

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, without a “miscarriage of justice” exception to appeal-waiver enforcement,

critical legal questions regarding the sentencing of criminal defendants will continue

to be insulated from appellate scrutiny in criminal cases. This Honorable Court

should resolve the split and recognize a “miscarriage of justice” exception to appealwaiver enforcement.

This Petition seeks the same relief petitioned for in Chaney v. United States,

which the Court is currently considering in conference. Just as in Mr. Chaney’s case,

the district court below abdicated its duty at sentencing to resolve an error brought

to its attention. Mr. Johnson should have a right to appeal. Mr. Johnson could not

1 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.”).

7

have knowing waived his right to appeal an erroneous sentence. This Court must

intervene.

I.

This Court should weigh in on the constitutionality of appeal

waivers that are unknowing and involuntary.

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 have allowed these waivers 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. 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.2 But the analogy courts have drawn between sentencing-related appeal

2 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

8

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);

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 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

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.”).

9

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 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 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 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)). Thus, sentencing-related appeal waivers—particularly a waiver of a

sentence that constitutes a miscarriage of justice—are unknowing.

Sentencing-related

appeal

waivers

are

also

involuntary

in

federal

jurisdictions, like the Eastern District of Louisiana, where prosecutors mandate that

plea agreements include broad, boilerplate waivers of this important statutory right.

10

As has become standard practice in criminal cases in the Eastern District of

Louisiana, Mr. Johnson’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. Mr. Johnson’s plea

agreement contains the broadest and most restrictive appeal waiver permitted by

U.S. Department of Justice Policy.3 By incorporating these waivers into every plea

agreement and requiring defendants to assent to the agreement’s terms to accept any

plea deal, the government is compelling defendants to waive their appeal rights for

no benefit.

Many judges and commentators have noted the legal and policy concerns

raised by compelled waiver of appellate rights. 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.

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).

3

11

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

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.”).

12

Although the finality of an appeal waiver provides some benefits, 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

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); see also 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 acknowledge and address the widespread practice of blanket

appellate waivers and find them unenforceable.

II.

This Court should resolve the circuit split over the disparate

enforcement of appeal waivers.

Appeal waivers like the one in this case are pervasive, but the enforcement varies

by circuit. As one commentator observed, “[i]n the absence of 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 while an identically situated defendant in another circuit will

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be deprived of that right. 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,

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

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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 and

apply the “miscarriage of justice” term differs 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:

(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.

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Khattak, 273 F.3d at 562.

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 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. Johnson’s plea agreement—which

encompassed all challenges to the Guidelines and manner in which his sentence was

determined— is unjust, unknowing, and involuntary. The Court’s guidance is needed

to clarify the enforceability of an overly broad appeal waiver.

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III.

Mr. Johnson’s circumstances present an ideal opportunity to apply

the “miscarriage of justice” exception to the enforcement of appeal

waiver.

As in Chaney v. United States, this Court should also grant certiorari in this

case because Mr. Johnson’s circumstances present an ideal vehicle for this Court to

address the validity and enforceability of sentencing-related appeal waivers. Mr.

Johnson 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.

Criminal defendants, like Mr. Johnson, are entitled to due process rights at

the sentencing phase. United States v. Stile, 845 F.3d 425, 430 (1st Cir. 2017)

(“Certainly a defendant has a right to due process at sentencing.”) 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.

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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 “do not presume acquiescence in the loss of fundamental rights.” Johnson v.

Zerbst, 304 U.S. 458, 464 (1938). Thus, when waiving the right to appeal, a defendant

does not waive the right to fair sentencing entirely because the 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. United States v. Guillen, 561 F.3d 527, 530 (D.C.

Cir. 2009). Appellate waivers do not (or should 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. 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.

Here, Mr. Johnson’s plea agreement required him to waive all rights to

appellate and collateral relief, except for challenges based on a sentence exceeding

the statutory maximum or claims of ineffective assistance of counsel. But Mr.

Johnson could not have known that his Guidelines range would be substantially

enhanced by the improper and erroneous application of the career offender Guideline.

Although Mr. Johnson’s 1997 Louisiana conviction for armed robbery should not

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qualify as a crime of violence under the U.S. Sentencing Guidelines, the District

Court erred in its sentencing determination because a conviction for armed robbery

in Louisiana could be based solely on the recklessness or negligence of the

perpetrator, making it a general intent crime that does not satisfy the requirements

to be considered a “crime of violence” under the Sentencing Guidelines. As noted

above, the District Court acknowledged the validity of the argument regarding the

intent element required to commit armed robbery in Louisiana, despite overruling

Mr. Johnson’s objection and adopting the U.S. Probation Officer’s determination that

the career offender enhancement applied.

Given the validity of Mr. Johnson’s challenge to his career offender

designation, Mr. Johnson’s appeal waiver cannot be construed as a knowing and

voluntary relinquishment of his right to appeal a sentence that constitutes a

miscarriage of justice. Instead, this Court should recognize that there must exist a

right to appeal a sentence that constitutes a miscarriage of justice, such as in Mr.

Johnson’s case. Simply put, a defendant cannot knowingly and voluntarily

waive the right to appeal a sentence that constitutes a miscarriage of justice

because such a possibility would not have been—indeed, could not have been—known

at the time of agreeing to the waiver. The exception carries particular significance for

the development of the law, as broad appeal waivers leave complex legal questions

unresolved, such as the precise error in sentencing Mr. Johnson.

This Honorable Court should resolve the enforceability of broad appeal

waivers. The similarities between Mr. Johnson’s case and Mr. Chaney’s case show

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that the issue is reoccurring and is a broadly impactful question to affects many

Petitioners.

CONCLUSION

For the foregoing reasons, this Court should grant Mr. Johnson’s petition for

writ of certiorari.

December 12, 2025

Respectfully submitted.

/s/Stuart D. Kottle

STUART D. KOTTLE

Counsel of Record

KAYLYN B. HANDY

Sher Garner Cahill

Richter Klein & Hilbert, L.L.C.

909 Poydras Street

28th Floor

New Orleans, Louisiana 70112

(504) 299-2102

skottle@shergarner.com

khandy@shergarner.com

Counsel for Petitioner

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