Petition for Writ of Certiorari — Keith Lashon Bell, Petitioner v. United States

No. __-_____ (25A594)

IN THE

Supreme Court of the United States

_______________

KEITH LASHON BELL,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

_______________

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Fourth Circuit

_______________

PETITION FOR WRIT OF CERTIORARI

_______________

GEREMY C. KAMENS

Federal Public Defender

Joseph S. Camden

Assistant Federal Public Defender

Counsel of Record

701 East Broad Street, Suite 3600

Richmond, VA 23219

(804) 565-0800

Joseph_Camden@fd.org

January 30, 2026

QUESTION PRESENTED

Whether general contract principles, such as the requirement of consideration,

and negotiated exclusive remedies, apply to the enforcement of appellate waivers in

plea agreements.

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PARTIES TO THE PROCEEDINGS

All parties appear in the caption of the case on the cover page.

RELATED CASES

(1)

United States v. Keith Lashon Bell, No. 23-4627 (4th Cir. 2025)

(2)

United States v. Keith Lashon Bell, 3:12CR189-DJN, (E.D. Va.), Judgment

entered September 22, 2023.

(3)

Hunter v. United States, No. 24-1063 (petition for certiorari granted Oct. 10,

2025).

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TABLE OF CONTENTS

Question Presented......................................................................................................... i

Parties to the Proceedings ............................................................................................. ii

Related Cases ................................................................................................................. ii

Table of Contents .......................................................................................................... iii

Table of Authorities ...................................................................................................... iv

Petition for Writ of Certiorari ....................................................................................... 1

Opinion Below ................................................................................................................ 1

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

Constitutional and Statutory Provisions Involved ....................................................... 1

Statement of the Case ................................................................................................... 2

Reasons for Granting the Petition ................................................................................ 9

I.

The Circuit Courts are Split Over Whether Consideration Is Required For

Enforcement of a Plea Agreement ...................................................................... 9

II.

The Fourth Circuit is Wrong; the General Law of Contracts Governs Plea

Agreements........................................................................................................ 11

III.

A.

A General Law Approach is Consistent With This Court’s Precedents15

B.

A General Law Approach is Self-Recommending. ................................ 17

Mr. Bell’s Case is an Appropriate Vehicle ....................................................... 22

Conclusion .................................................................................................................... 23

APPENDIX

Decision of the court of appeals

United States v. Keith Lashon Bell, No. 23-4627 (4th Cir. 2025).................... 1a

Order of the court of appeals denying rehearing (Sep. 3, 2025) ................................ 7a

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TABLE OF AUTHORITIES

Cases

Brady v. United States, 397 U.S. 742 (1970) ........................................................ 13, 18

Hunter v. United States, No. 24-1063 (petition for certiorari granted Oct.

10, 2025).................................................................................................................... 9

Lafler v. Cooper, 566 U.S. 156 (2012).......................................................................... 16

Patton v. United States, 281 U.S. 276 (1930).............................................................. 13

Ricketts v. Adamson, 483 U.S. 1 (1987) .................................................... 11, 15, 16, 19

Santobello v. New York, 404 U.S. 257 (1971) ............................................................. 15

United States v. Andreas, 216 F.3d 645 (7th Cir. 2000) ............................................. 18

United States v. Ataya, 864 F.2d 1324 (7th Cir. 1988) ............................................... 10

United States v. Blick, 408 F.3d 162 (4th Cir. 2005) .................................................. 11

United States v. Brunetti, 376 F.3d 93 (2d Cir. 2004) ................................................ 10

United States v. Burr, 25 F. Cas. 187 (Cir. Ct., Dist. Va. 1807) ................................ 14

United States v. Davis, 588 U.S. 445 (2019) ................................................................. 5

United States v. Divens, 650 F.3d 343 (4th Cir. 2011) ............................................... 22

United States v. De la Fuente, 8 F.3d 1333 (9th Cir. 1993)........................................ 10

United States v. Fears, 71 F.4th 627 (7th Cir. 2023) .................................................. 10

United States v. Hamdi, 432 F.3d 115 (2d Cir. 2005) ................................................ 18

United States v. Hyde, 520 U.S. 670 (1997) .......................................................... 15, 20

United States v. Jordan, 509 F.3d 191 (4th Cir. 2007) .............................................. 22

United States v. Kohlmiller, 304 F. App’x. 956 (3d Cir. 2008) ................................... 10

United States v. Lutchman, 910 F.3d 33 (2d Cir. 2018) ............................................. 10

United States v. Martin, 2025 WL 88687 (11th Cir. 2025) ........................................ 23

United States v. McCoy, 895 F.3d 358 (4th Cir. 2018) ............................................... 11

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United States v. McGovern, 822 F.2d 739 (8th Cir. 1987).......................................... 11

United States v. Newbert, 504 F.3d 180 (1st Cir. 2007) ............................................. 11

United States v. Norris, 486 F.3d 1045 (8th Cir. 2007) (en banc) .............................. 18

United States v. Novosel, 481 F.3d 1288 (10th Cir. 2007) .......................................... 10

United States v. Parrilla-Tirado, 22 F.3d 368 (1st Cir.1994) .................................... 10

United States v. Randolph, 230 F.3d 243 (6th Cir.2000) ........................................... 10

United States v. Ruiz, 536 U.S. 622 (2002) ................................................................. 17

United States v. Soloff, 993 F.3d 240 (4th Cir. 2021) ................................................. 11

United States v. Thomas, 58 F.4th 964 (8th Cir. 2023).............................................. 18

United States v. Wallace, 22 F.3d 84 (4th Cir. 1994) ................................................. 23

United States v. Winnick, 490 F. App'x 718 (6th Cir. 2012) ...................................... 10

Williams v. Fla., 399 U.S. 78 (1970) ........................................................................... 13

Statutes

18 U.S.C. § 924 ..................................................................................................... 3, 5, 22

18 U.S.C. § 3231 ............................................................................................................. 1

28 U.S.C. § 1254 ............................................................................................................. 1

28 U.S.C. § 1291 ............................................................................................................. 1

28 U.S.C. § 2255 ..................................................................................................... 2, 5, 7

Other Authorities

U.S.S.G. § 3E1.1............................................................................................................. 3

Rules

Fed. R. Crim. P. 11............................................................................................... passim

Treatises and Articles

13 Williston on Contracts § 38.9 (4th Ed.) .................................................................. 21

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29 Williston on Contracts § 73:5 (4th ed.)................................................................... 21

3A A. Corbin, Corbin on Contracts § 628 (1960)......................................................... 20

7 Williston on Contracts § 15:14 (4th ed.)................................................................... 23

Amy Barrett, Procedural Common Law,

94 Va. L. Rev. 813, 886 (2008) ............................................................. 12, 13, 14, 19

Caleb Nelson, The Persistence of General Law,

106 Colum. L. Rev. 503 (2006) ......................................................................... 14, 15

J. Calamari & J. Perillo, Law of Contracts § 11-7, p. 441 (3d ed.1987) ..................... 20

Ram Subramanian, et al., In the Shadows: A Review of the Research on Plea

Bargaining, Vera Institute of Justice (Sep. 2020) ................................................ 19

Restatement (Second) of Contracts ..................................................................... passim

Stephen E. Sachs, Life After Erie 17 (Nov. 1, 2023) ....................................... 12, 14, 18

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PETITION FOR WRIT OF CERTIORARI

Keith Lashon Bell respectfully petitions for a writ of certiorari to review the

judgment of the United States Court of Appeals for the Fourth Circuit.

OPINION BELOW

The opinion of the United States Court of Appeals appears at pages 1a to 7a of

the appendix to the petition.

JURISDICTION

The district court in the Eastern District of Virginia had jurisdiction under

18 U.S.C. § 3231. The Fourth Circuit had jurisdiction under 28 U.S.C. § 1291. That

court issued its opinion and judgment on August 6, 2025. Pet. App’x. 1a. Mr. Bell

filed a timely petition for rehearing on August 20, 2025, which was denied on

September 3, 2025. Pet. App’x. 7a. On November 20, 2025, this Court (Roberts, C.J.)

granted an application extending the time to file a petition for certiorari to

January 31, 2026. This Court has jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

None. 1

1 As explained below, no statute, rule, or other positive law appears to govern the

construction and enforcement of appeal waiver provisions in plea agreements.

Federal common law, incorporating contract principles, applies. And Mr. Bell makes

no constitutional claims.

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STATEMENT OF THE CASE

This petition challenges the dismissal of Mr. Bell’s sentencing appeal

challenging his 20-year sentence on a Guidelines range of 87-108 months, following

a successful motion to vacate under 28 U.S.C. § 2255. The appeal was dismissed on

the government’s motion, invoking an appellate waiver provision in Mr. Bell’s

original plea agreement. In opposition to the government’s motion to dismiss, Mr.

Bell advanced arguments under contract principles, which the Fourth Circuit refused

to consider. In at least six other circuits, Mr. Bell’s contract-law claims would have

been evaluated on the merits. That split, and the importance of establishing a

framework for evaluating disputes on the enforceability of plea agreements, justify

certiorari here.

The history of the case began when Mr. Bell joined the Crips gang in California

at age 15, after a tumultuous upbringing during which he was neglected, abandoned,

and abused.

C.A.J.A. 238-39.

In 2011, Mr. Bell participated in two robberies.

C.A.J.A. 26-27. 2 He first received a 10-year revocation sentence from a prior Virginia

conviction. C.A.J.A 121; 233-35. He was then produced in the Eastern District of

Virginia, and immediately pled guilty in 2012, under a plea agreement, to an

information charging two counts of conspiracy to commit Hobbs Act robbery and one

“C.A.J.A.” refers to the joint appendix filed in the court of appeals. See Joint

Appendix, United States v. Bell, No. 23-4627, Docs. 18 (Joint Appendix, filed Jan. 29,

2024); 19 (Sealed Joint Appendix, filed Jan. 29, 2024). “C.A.S.A.” refers to the

Supplemental Appendix filed in the court of appeals. Id., Docs. 28 (Supplemental

Appendix, filed April 9, 2024); 29 (Sealed Supplemental Appendix, filed Apr. 9, 2024).

2

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count of use of a firearm in furtherance of a crime of violence under 18 U.S.C. § 924(c).

C.A.J.A. 11-13; C.A.S.A 24-41 (transcript of plea hearing).

Mr. Bell’s plea agreement contained several provisions relevant here. First, it

contained an immunity provision that promised the government would not

further criminally prosecute the defendant in the Eastern District of

Virginia for the specific conduct described in the information or

statement of facts, except that the United States may prosecute the

defendant for any crime of violence or conspiracy to commit, or aiding

and abetting, a crime of violence not charged in the information as an

offense.

C.A.J.A. 20-21.

The government also promised to recommend a third point

adjustment for acceptance of responsibility under U.S.S.G. § 3E1.1. C.A.J.A. 18. A

concurrently-filed Statement of Facts, which Mr. Bell signed, admitted that he had

planned two convenience store robberies, gave instructions to an accomplice, and

provided the accomplice with a revolver, and kept most of the proceeds after the

accomplice had completed the robberies. C.A.J.A. 26-29.

The plea agreement also contained the following appellate waiver:

6.

Waiver of Appeal, FOIA and Privacy Act Rights

The defendant also understands that Title 18, United States

Code, Section 3742 affords a defendant the right to appeal the sentence

imposed. Nonetheless, the defendant knowingly waives the right to

appeal the conviction and any sentence within the statutory maximum

described above (or the manner in which that sentence was determined)

on the grounds set forth in Title 18, United States Code, Section 3742 or

on any ground whatsoever, in exchange for the concessions made by the

United States in this plea agreement. This agreement does not affect

the rights or obligations of the United States as set forth in Title 18,

United States Code, Section 3742(b). [. . .]

J.A. 19.

Further, the plea agreement set out remedies in case of a breach:

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10.

Breach of the Plea Agreement and Remedies

This agreement is effective when signed by the defendant, the

defendant’s attorney, and an attorney for the United States. The

defendant agrees to entry of this plea agreement at the date and time

scheduled with the Court by the United States (in consultation with the

defendant’s attorney). If the defendant withdraws from this agreement,

or commits or attempts to commit any additional federal, state or local

crimes, or intentionally gives materially false, incomplete, or misleading

testimony or information, or otherwise violates any provision of this

agreement, then:

a. The United States will be released from its obligations under this

agreement, including any obligation to seek a downward

departure or a reduction in sentence. The defendant, however,

may not withdraw the guilty plea entered pursuant to this

agreement;

b. The defendant will be subject to prosecution for any federal

criminal violation, including, but not limited to, perjury and

obstruction of justice, that is not time-barred by the applicable

statute of limitations on the date this agreement is signed.

Notwithstanding the subsequent expiration of the statute of

limitations, in any such prosecution, the defendant agrees to

waive any statute-of-limitations defense; and

c. Any prosecution, including the prosecution that is the subject of

this agreement, may be premised upon any information provided,

or statements made, by the defendant, and all such information,

statements, and leads derived therefrom may be used against the

defendant. The defendant waives any right to claim that

statements made before or after the date of this agreement,

including the statement of facts accompanying this agreement or

adopted by the defendant and any other statements made

pursuant to this or any other agreement with the United States,

should be excluded or suppressed under Fed. R. Evid. 410, Fed.

R. Crim. P. 11 (f), the Sentencing Guidelines or any other

provision of the Constitution or federal law.

Any alleged breach of this agreement by either party shall be

determined by the Court in an appropriate proceeding at which the

defendant's disclosures and documentary evidence shall be admissible

and at which the moving party shall be required to establish a breach of

the plea agreement by a preponderance of the evidence.

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C.A.J.A. 21-23. Last, the plea agreement included an integration clause. C.A.J.A.

23. 3

Mr. Bell was sentenced consistent with the Guidelines at the time, to 240

months on the conspiracy counts, and 60 months consecutive on the § 924(c) count,

for a total of 300 months, all consecutive to his 10-year state sentence. C.A.J.A. 55.

While in state custody in the years awaiting the beginning of his federal

sentence, Mr. Bell received disciplinary violations, but none for using weapons.

C.A.J.A. 116. Before being transferred to the Bureau of Prisons in 2020, he was

informed he had been “green lit” which, as the district court noted, “mean[s] that

somebody is going to kill you if you get to prison.” C.A.J.A. 146. Mr. Bell was stabbed

not long after his transfer to federal custody, at USP Hazelton, in an area not

adequately covered by video cameras. C.A.J.A. 108, 110. He was transferred to USP

Canaan, where another inmate assaulted him, punching him hard enough to force

his tooth through his lip and caused him to lose the tooth. C.A.J.A. 173.

After this Court’s opinion in United States v. Davis, 588 U.S. 445 (2019), Mr.

Bell filed a motion under 28 U.S.C. § 2255 to vacate his § 924(c) conviction.

C.A.J.A. 64. The government agreed, and consented to a new sentencing hearing.

C.A.J.A. 80-84. Mr. Bell’s guidelines were recalculated, coming out to 100 to 125

months, later lowered by the district court to 87 to 108 months in anticipation of a

pending and retroactive guideline amendment. C.A.J.A. 143-44; 257-58.

3 The full terms of Mr. Bell’s plea agreement and transcript of the plea colloquy at

which they were reviewed, is contained in the sealed supplemental joint appendix,

C.A.S.A. 24-35.

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Rather than relying entirely on his allocution, Mr. Bell chose to take the stand

and testify, under oath and subject to cross-examination by the government, and

extensive questioning directly from the court. C.A.J.A. 145-179. Mr. Bell described

in detail his life in prison, including the dangers he faced, the reasons for the

disciplinary violations he received, and his efforts to extract himself from the gang,

the insight he had received from being the victim of attack, and his fear of returning

to the Bureau of Prisons. C.A.J.A. 146-175. The district court acknowledged Mr.

Bell’s efforts at rehabilitation, C.A.J.A. 200-201. But, emphasizing the seriousness

of the offense, the district court found “no reason to disturb the original sentence.”

C.A.J.A. 198. It re-imposed the same 240-month sentence on the conspiracy counts.

Mr. Bell appealed. In his opening brief he argued that the district court had

committed Guidelines error in accounting for his state revocation sentence, and that

the sentence at the statutory maximum and twice the Guidelines range was

substantively unreasonable.

The government moved to dismiss the appeal and suspend briefing, invoking

Mr. Bell’s plea agreement. Doc. 31. 4 In response, Mr. Bell did not challenge the

voluntariness of his plea, or lack of understanding of the plea agreement. Instead,

he made four arguments under contract law against enforcement of the appellate

waiver. Doc. 39.

4 “Doc.” generally refers to documents as numbered in the docket in United States v.

Bell, No. 23-4627 (4th Cir.).

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First, he argued that the appellate waiver in the plea agreement should be

construed to waive appeal only of the original sentencing, and did not extend to an

appeal after a plenary resentencing as remedy for a successful § 2255 motion.

Doc. 39 at 5. Second, repeating arguments the government had invoked successfully

to abrogate plea agreements in other cases, he argued that frustration of purpose

barred enforcement of the appellate waiver. Doc. 39 at 13. Third, he argued that the

appellate waiver was not supported by consideration and therefore unenforceable.

Doc. 39 at 14. Last, he argued that dismissal of the appeal was not the appropriate

remedy even if the appeal violated the terms of the plea agreement, because the

written and integrated agreement enumerated exclusive remedies for breach, and

specific performance was not among them. Doc. 39 at 17.

The Fourth Circuit refused to consider Mr. Bell’s contract law arguments.

Instead, following Circuit precedent, it held the waiver enforceable on the sole ground

that it was knowingly and intelligently made. Pet. App’x. 3a. Because Mr. Bell had

not challenged the voluntariness of the plea or waiver, and the issues raised in his

opening brief fell within the scope of the waiver, it enforced the waiver directly and

dismissed the appeal. Pet. App’x. 3a-6a.

Mr. Bell filed a petition for panel rehearing. Doc. 86. He noted that five other

Circuit Courts of Appeal had all recognized that a knowing, voluntary, and intelligent

appellate waiver could be rendered unenforceable under contract principles,

including due to lack of consideration, and that the panel’s opinion created a split

with those authorities, and was not addressed. Doc. 86 at 2-6. He argued again that

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his particular plea agreement contained no consideration to support the appellate

waiver, and urged the panel, regardless of how it ruled, to explain its position for

further review. Doc. 86 at 16. The panel denied the petition for rehearing without

comment. Pet. App’x. 7a. This petition for certiorari follows.

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REASONS FOR GRANTING THE PETITION

Mr. Bell’s petition asks whether contract law principles apply to the

interpretation and enforcement of plea agreements.

It is closely related to the

questions presented in Hunter v. United States, No. 24-1063 (petition for certiorari

granted Oct. 10, 2025). The Court should hold Mr. Bell’s petition to await resolution

of Hunter.

On its own merits, Mr. Bell’s case is an apt and focused vehicle to resolve the

standards governing interpretation and enforcement of plea agreements. It asks the

Court to provide lower courts a framework for not only construction, but also

enforcement, of plea agreements. This Court’s own cases do not definitely answer

whether such questions are governed by the general law of contracts, or by ad hoc

rules under the Court’s inherent supervisory power. Providing the proper framework

will allow lower courts to resolve issues that currently split the Courts of Appeal, such

as whether consideration is required to support an appellate waiver.

These questions are important, both because they have engendered a split in

authority, and because the enforcement, and threat of enforcement, of plea

agreements underlie nine out of ten federal criminal cases, and affect the decision to

plead or demand trial in nearly every case.

I.

THE CIRCUIT COURTS ARE SPLIT OVER WHETHER

CONSIDERATION IS REQUIRED FOR ENFORCEMENT OF A

PLEA AGREEMENT

The Circuit split is, admittedly, one-sided against the Fourth Circuit. The

First, Second, Third, Sixth, Seventh, and Ninth Circuits have all recognized that

consideration is a necessary element for enforcement of an appellate waiver. As a

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panel including then-Judge Sotomayor put it, the enforceability of a waiver in a plea

agreement “can be challenged for contractual invalidity, including invalidity based

on a lack of consideration[.]” United States v. Brunetti, 376 F.3d 93, 95 (2d Cir. 2004);

see also United States v. Parrilla-Tirado, 22 F.3d 368, 371 (1st Cir.1994) (same);

United States v. Lutchman, 910 F.3d 33 (2d Cir. 2018) (holding appellate waiver

invalid for lack of consideration); United States v. Kohlmiller, 304 F. App’x. 956, 958

(3d Cir. 2008) (“Plea agreements are construed according to general contract-law

principles. [. . .] It is axiomatic that contracts must be supported by consideration.”);

United States v. Winnick, 490 F. App'x 718, 721 (6th Cir. 2012) (“A plea agreement

must confer some benefit upon the defendant.”) (citing United States v. Randolph,

230 F.3d 243, 249 (6th Cir.2000)); United States v. Fears, 71 F.4th 627, 630 (7th Cir.

2023) (For plea agreements with appellate waivers “[t]o be enforceable, there must

be consideration.”); see also United States v. De la Fuente, 8 F.3d 1333, 1340 (9th Cir.

1993) (rejecting government’s proposed interpretation of ambiguous provision

because if correct, “the government promised nothing to De la Fuente for his

agreement to cooperate”). 5

More broadly, outside the Fourth Circuit, contract

principles are frequently invoked by both defendants and the government on the

construction and enforcement of plea agreements. See, e.g., United States v. Ataya,

864 F.2d 1324, 1328-1336 (7th Cir. 1988) (citing Restatement (Second) of Contracts

5 The Tenth Circuit has not explicitly adopted the rule that consideration is required

for an enforceable appellate waiver but, instead of holding the opposite, “assumed”

the requirement to apply without deciding. E.g., United States v. Novosel, 481 F.3d

1288, 1291 (10th Cir. 2007).

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§§ 203, 206, 207, 250 in support of government’s argument of anticipatory breach);

United States v. McGovern, 822 F.2d 739, 743 (8th Cir. 1987) (government invoking

mutual mistake, citing Restatement (Second) of Contracts §§ 151-154); United States

v. Newbert, 504 F.3d 180, 188 (1st Cir. 2007) (defendant invoking mutual mistake,

relying on Restatement)

By contrast, the inquiry on enforceability in the Fourth Circuit begins and ends

with whether the waiver was “knowingly and intelligently” entered. Pet. App’x 3a4a (quoting United States v. Soloff, 993 F.3d 240, 243 (4th Cir. 2021) (quoting United

States v. Blick, 408 F.3d 162, 169 (4th Cir. 2005) (citing United States v. Attar, 38

F.3d 727, 731 (4th Cir. 1994) (‘In this circuit, a waiver-of-appeal-rights provision in a

valid plea agreement is enforceable against the defendant so long as it is ‘the result

of a knowing and intelligent decision to forgo the right to appeal.”) (emphasis added,

further citations omitted))). In the Fourth Circuit, the only recognized ground for

challenging an appellate waiver is the type of claim that “if true, would render the

plea itself unknowing or involuntary.” United States v. McCoy, 895 F.3d 358, 363

(4th Cir. 2018). So while its sister circuits analyze the enforceability of appellate

waivers generally under contract principles, the Fourth Circuit instead analyzes

them under the law of waiver alone.

II.

THE FOURTH CIRCUIT IS WRONG; THE GENERAL LAW OF

CONTRACTS GOVERNS PLEA AGREEMENTS

It is still true, as it was nearly forty years ago, that “[t]his Court has yet to

address in any comprehensive way the rules of construction appropriate for disputes

involving plea agreements.” Ricketts v. Adamson, 483 U.S. 1, 16 (1987) (Brennan, J.,

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dissenting).

The Fourth Circuit was free to disregard Mr. Bell’s contract law

arguments because neither it nor this Court have ever held, as a general matter, that

contract law governs the enforcement of plea agreements. It should do so now.

Hunter in particular, provides both an opportunity and a temptation for the

Court to invent a new, ad hoc doctrine of federal common law governing the

enforceability of appeal waivers in plea agreements. The Court could weigh the costs

and benefits of such-and-such a rule, and dilate or restrict the exceptions to appellate

waivers based on its prediction of the likely impact on courts and the government,

and the weight it places on the rights at stake, under an amorphous and ungoverned

supervisory or inherent power. But it should not do so.

“When asked to impose its own novel rule of ‘federal common law,’ . . . a federal

court can just say no.” Stephen E. Sachs, Life After Erie 17 (Nov. 1, 2023) (emphasis

in original). 6

It should not, that is, “develop rules through the raw exercise of

discretion.” Amy Barrett, Procedural Common Law, 94 Va. L. Rev. 813, 886 (2008).

Instead, it should “take account of the consensus reflected in secondary sources and

judicial opinions.” Id. The Court has, at hand, a ready-made body of law, adapted

over centuries and informed by social practice, that protects the legitimate

expectations of parties to an agreement, and balances them against the public

interest. That is the general law of contracts.

The Court should take the opportunity to declare that there is a general law of

contracts, and that it governs disputes over the meaning and enforceability of plea

6 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4633575 (as of Jan. 30, 2026)

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agreements in federal criminal cases. The general law of contracts includes concepts

such as public policy exceptions to the enforcement of contract terms, under which

the Court (or the Fifth Circuit, on remand) can evaluate Mr. Hunter’s or Mr. Bell’s

claims. It includes rules on what constitutes consideration, and the proper remedy

in case of a breach, under which this Court (or any court, without much difficulty)

could evaluate claims such as Mr. Bell’s.

In the 55 years since this Court noticed and approved plea bargaining, see

Brady v. United States, 397 U.S. 742 (1970), 7 Congress, whose word would be final,

has elected not to regulate the terms or enforceability of plea agreements generally,

as is its prerogative. Amy Barrett, Procedural Common Law, 94 Va. L. Rev. 813, 841

(2008) (“In making substantive common law, the judiciary effectively functions as a

placeholder for Congress.”). 8

Less than 100 years ago, this Court found it necessary to consider and decide

whether a defendant even could waive the right to a jury trial in a felony case, only

reluctantly holding he can. Patton v. United States, 281 U.S. 276, 312, 50 S. Ct. 253,

263, 74 L. Ed. 854 (1930), abrogated by Williams v. Fla., 399 U.S. 78, 90 S. Ct. 1893,

26 L. Ed. 2d 446 (1970) (“Trial by jury is the normal and, with occasional exceptions,

the preferable mode of disposing of issues of fact in criminal cases above the grade of

petty offenses.”).

8 Performance of many typical terms of plea agreements occurs in court, so some

aspects of the law governing enforcement of plea agreements could be called

procedural common law. Congress’ ability to regulate court procedure, as opposed to

substantive law, is potentially subject to limits, an issue which has not been

liquidated and, given the success of the Rules Enabling Act, may never be.

Procedural Common Law, 94 Va. L. Rev.at 842 (“The precise limits of Congress’s

authority to regulate federal court procedure are a matter of dispute[.]”). Here,

whether the Court’s authority to determine the rules for enforceability of plea

agreements comes from Congress’s inaction on one hand, or from the Court’s inherent

authority, on the other, should not affect what rules it should adopt or follow. Id. at

884 (“The body of law resulting from these dual strands of authority is a collection of

uniform doctrines largely drawn from general law[.]”).

7

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Instead, Rule 11 forbids district courts from participating in plea negotiations.

Fed. R. Crim. P. 11(c)(1). And the court’s role at the plea stage is restricted to making

sure a defendant is aware of any appellate waiver terms, Fed. R. Crim. P. 11(b)(1)(N),

and the binary choice of accepting or rejecting the plea agreement, separate from the

plea itself. Fed. R. Crim. P. 11(c)(4), (5). There is nothing in any Federal Rule or Act

of Congress concerning how to construe plea agreements, how and whether to enforce

their terms, or delineating remedies for breach. But that should not mean that no

law governs and the Court is free to create new rules from scratch based on policy

concerns or general discretion.

In the absence of Congressional direction, the Court should look to the general

law of contracts, as such.

The general law of contracts means unwritten but

identifiable legal rules that have enjoyed “long and immemorial usage” and

“universal reception.” Stephen E. Sachs, Finding Law, 107 Cal. L. Rev. 527, 540

(2019) (quoting 1 William Blackstone, Commentaries). Or as Chief Justice Marshall

wrote, “that generally recognized and long established law, which forms the

substratum of the laws of every state.” United States v. Burr, 25 F. Cas. 187, 187

(Cir. Ct., Dist. Va. 1807) (Marshall, C.J.). Or “rules settled by tradition or emergent

consensus.” Amy Barrett, Procedural Common Law, 94 Va. L. Rev. 813, 884 (2008).

Or, again, “a distillation of general American jurisprudence” that “emerges from

patterns followed across a multitude of jurisdictions[.]” Caleb Nelson, The Persistence

of General Law, 106 Colum. L. Rev. 503, 505 (2006). It does not mean ad hoc policy

judgments or the exercise of discretionary supervisory power.

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This Court has invoked contract principles to decide questions on the

enforceability of plea agreements, but never required it. See, e.g., United States v.

Hyde, 520 U.S. 670, 677–78 (1997) (citing treatises). Sometimes, though, this Court

hasn’t even said what law it is applying. See, e.g., Santobello v. New York, 404 U.S.

257 (1971); Ricketts v. Adamson, 483 U.S. 1 (1987). That’s not a unique problem, as

with the atrophy of general law, “modern courts lack a framework for thinking about

such rules.” Caleb Nelson, The Persistence of General Law, 106 Colum. L. Rev. 503,

505 (2006).

A.

A General Law Approach is Consistent With This Court’s

Precedents

But, perhaps because of the unrecognized persistence of general law, every

case this Court has decided concerning plea agreements fits comfortably within

general contract law, even where the Court did not invoke contract law principles by

name. No great reworking of this Court’s precedents is needed. In many cases, this

Court explicitly invoked general contract law principles without addressing the

framework.

But even in cases where it did not name the doctrine or reference a

source reflecting consensus, the reasoning and outcome are consistent with general

contract law.

In Santobello v. New York, 404 U.S. 257 (1971), the Court set out the basic

principles, familiar to any first year law student in a contracts class, that a bargainedfor exchange of promises is enforceable, and that the law governing breach does not

consider intent of the breaching party. It left the remedy open on remand, but

described the alternatives as withdrawal of the plea (i.e. rescission) or specific

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performance. The Court may not have cited any source for these propositions beyond

“the interests of justice and appropriate recognition of the duties of the prosecution,”

id. at 262, but the concepts it applied were straight from any contract law textbook.

The Court eventually did adopt a specific performance remedy in Lafler v. Cooper,

566 U.S. 156, 174 (2012), requiring the state (despite its sovereign discretion on

charging decisions) “to reoffer the plea agreement” after a defect in the rejection.

In Ricketts v. Adamson, 483 U.S. 1 (1987), the majority opinion did not explain

the framework for its analysis or invoke any consensus on contract principles; but its

reasoning and conclusion square with generally accepted contract principles. The

case involved a Double Jeopardy claim, where the defendant had promised to testify

in exchange for the state’s consent to a plea to second-degree murder instead of firstdegree murder. Id. at 3-4. He breached the plea agreement by refusing to testify as

he’d promised; in response, prosecutors revived the first-degree murder charge, upon

which the petitioner was eventually convicted and sentenced to death. Id. The

Double Jeopardy Clause, considered alone, clearly forbids this duplicative charge.

But this Court invoked the “clear[]” terms of the agreement, including its specification

of a remedy that in the event of the agreement’s invalidation, “the parties shall be

returned to the positions they were in before” this agreement, which the Court

characterized as “the status quo ante,” which just describes a contractually negotiated

remedy of rescission. The Court went on, calling petitioner’s conviction and death

sentence a “consequence[] of [the] choice” not to testify, id. at 11, which is just another

way of describing an attempt at efficient anticipatory breach.

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United States v. Ruiz, 536 U.S. 622, 629 (2002) hewed to contract-law

principles (again without naming them) even as against a fundamental due process

right to exculpatory information. There, the court held that a lack of information at

the bargaining stage did not render a plea under an agreement involuntary. This

was just an anodyne application of the general contract law rule that “[a] party bears

the risk of a mistake when . . . he is aware, at the time the contract is made, that he

has only limited knowledge with respect to the facts to which the mistake relates but

treats his limited knowledge as sufficient[.]” Restatement (Second) of Contracts §

154(b).

B.

A General Law Approach is Self-Recommending.

Aside from providing a proper context for this Court’s precedents on plea

agreements, a general law approach has many other advantages. First, it is already

the approach taken in many lower courts, if inconsistently. Second, it promotes the

rule of law and respect for courts by adopting objective standards and eschewing adhoc policy judgments, while leaving room for the exercise of discretion when

appropriate. Third, it respects separation of powers principles by providing Congress

a set of background principles against which to judge whether legislative

interventions are needed and what they should be. Fourth, it is easily administrable

– courts can do contract law as they always have done, without this Court having to

announce and elaborate a novel doctrine’s contours over many terms. Fifth, because

contract law already exists alongside and accommodates Constitutional law, this

approach avoids unnecessary constitutional adjudication. Sixth, a general contract

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law treatment of plea agreements avoids otherwise inexplicable contradictions

inherent in a discretionary approach.

Last, a general contract law approach is

entirely consistent with Federal Rule of Criminal Procedure 11, and indeed provides

the best way to understand the Rule’s underlying logic.

1.

A general law approach is what many lower courts are already doing.

See, e.g., United States v. Andreas, 216 F.3d 645, 663 & 663 n. 5 (7th Cir. 2000)

(applying general law to interpret an immunity agreement and relying on state cases,

federal cases and the Restatement (Second) of Contracts); United States v. Norris,

486 F.3d 1045, 1052 n.9 (8th Cir. 2007) (en banc) (“We see no reason to disavow the

apparent use of federal common law to enforce the affidavit-for-release-on-bond

bargain in Young); United States v. Thomas, 58 F.4th 964, 972–73 (8th Cir. 2023);

United States v. Hamdi, 432 F.3d 115, 123-24 (2d Cir. 2005) (applying to a plea

agreement the principle of contract law preferring an interpretation that does not

leave a portion of the contract superfluous). It does not require courts to break new

ground to resolve each new dispute on the meaning or enforceability of plea

agreements.

2.

A general law approach is objective and does not require (in fact forbids)

ad hoc policy judgments. See generally, Sachs, Finding Law, 107 Cal. L. Rev. 527

(2019). It avoids the pitfalls of predictive policy judgments that may later turn out to

be unsound. See, e.g., Brady v. United States, 397 U.S. 742, 758 (1970) (confidently

doubting that “the encouragement of guilty pleas by offers of leniency [would]

substantially increase[] the likelihood that defendants, advised by competent counsel,

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would falsely condemn themselves.”). Cf. Ram Subramanian, et al., In the Shadows:

A Review of the Research on Plea Bargaining, Vera Institute of Justice (Sep. 2020)

(https://vera-institute.files.svdcdn.com/production/downloads/publications/in-theshadows-plea-bargaining.pdf) (reviewing studies showing that 8 to 11 percent of

affirmatively exonerated defendants had pled guilty).

3.

A general law approach allows Congress, should it choose to regulate

plea agreements, to predict the contours of the background law without cases

elaborating every point – a gap attributable to appellate waivers in the first place.

Barrett, Procedural Common Law, 94 Va. L. Rev. 813, 841 (2008) (“In making

substantive common law, the judiciary effectively functions as a placeholder for

Congress.”);

4.

A general law approach allows the lower courts to decide the next

hundred cases under a recognizable framework without this Court’s constant

intervention and supervision. The Court can decide on the framework now, and avoid

the need to hear cases on plea agreement construction and enforcement every term

for the next decade to elaborate on any ad hoc rule it announces.

5.

A general law approach avoids unnecessary constitutional adjudication.

Constitutional issues often dissipate when the contract issues are resolved. Since

nearly all rights are now waivable, the real concern of courts is whether those waivers

were induced by promises and therefore enforceable, which is the essence of contract

law. Ricketts illustrates this type of dynamic well. Nominally it presented a Double

Jeopardy claim. Obviously, in the ordinary course, a person who is convicted of

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second degree murder, sentenced and then charged with first degree murder for the

same killing could plead autrefois convict and have the indictment dismissed on

Double Jeopardy grounds. The central question in Ricketts, as in Mr. Bell’s case and

Mr. Hunter’s case, is the enforceability of a contractually negotiated waiver. 483 U.S.

at 11. Those are properly addressed under contract law in the first instance, without

immediate resort to Due Process or inherent powers.

6.

A general law approach resolves doctrinal contradictions and

inconsistencies. For example, if a plea is voluntarily and knowingly entered, how

could a court allow withdrawal, after it’s accepted? Rule 11 allows withdrawal in

limited circumstances, but it doesn’t expressly allow withdrawal of a plea after it’s

been entered as a remedy for a later breach by the prosecutor. The only explanation

for that rule is general contract law, as the Court recognized in Hyde. See Hyde, 520

U.S. at 766-78 (“But if the court rejects the Government's promised performance, then

the agreement is terminated and the defendant has the right to back out of his

promised performance (the guilty plea), just as a binding contractual duty may be

extinguished by the nonoccurrence of a condition subsequent.”) (citing J. Calamari &

J. Perillo, Law of Contracts § 11-7, p. 441 (3d ed.1987); 3A A. Corbin, Corbin on

Contracts § 628, p. 17 (1960)). As another example, treating a waiver of appeal as

immediately extinguishing the right, as the Fourth Circuit did here, can’t explain

how the right could be revived based on later events that don’t affect its validity, such

as after a later breach by the government. A general contract law approach can

explain why that’s not simply a policy judgment or caprice. Because sentencing has

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not yet occurred, an appellate waiver provision in a plea agreement is not akin to a

release, which immediately extinguishes the right and justifies immediate dismissal,

but is better characterized as a contract not to sue (or appeal), which is a promise the

breach of which is subject to negotiated remedies. Compare Restatement (Second) of

Contracts § 284 (Release) with Restatement (Second) of Contracts § 285 (Contract

Not to Sue); 29 Williston on Contracts § 73:5 (4th ed.) (“[A] release of a right to be

acquired in the future is, therefore, anomalous, and, in the view of early lawyers, an

impossibility.”).

7.

Last, a general contract law approach is compatible with Fed. R. Crim. P. 11,

and provides a ready explanation for its underlying logic. The advisals required

ensure the formation of the contract is unimpeded by lack of capacity, mutual

mistake, or other defects in formation. Fed. R. Crim. P. 11(b)(1). Disclosure of the

plea agreement on the record, Fed. R. Crim. P. 11(c)(2) parallels the Statute of

Frauds, reflecting a value judgment that contracts affecting fundamental rights and

personal liberty are on a level with those involving, say, marriage, real estate or

performance over one year out. See Restatement (Second) of Contracts § 110. The

express approval of conditional pleas which allow withdrawal of a voluntary and

intelligently-entered plea after appeal, Fed. R. Crim. P. 11(a)(2), is inconsistent with

waiver principles, which ordinarily make voluntary pleas final and all-butirrevocable, but consistent with conditions subsequent, a well-established contract

principle. 13 Williston on Contracts § 38.9 (4th Ed.) (“a future event, the happening

of which discharges the parties from their otherwise binding agreement”). In short,

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Rule 11 itself is best understood as adopting contract principles already, and does not

exclude the adoption of contract law generally.

III.

MR. BELL’S CASE IS AN APPROPRIATE VEHICLE

Mr. Bell’s case presents the ideal vehicle for answering these questions. Mr.

Bell made no arguments except under contract law.

He did not challenge the

voluntariness of his plea or his understanding of the terms of the plea agreement. He

did not invoke constitutional due process principles or any other source of law besides

contract law, generally understood, and as used by this Court, at times.

His

arguments were dispositive on the only ground for decision below.

Mr. Bell is likely to benefit from a remand. His appellate waiver was not

supported by consideration. The promise to recommend the third point for acceptance

was not consideration. See United States v. Divens, 650 F.3d 343, 346 (4th Cir. 2011)

(government has no discretion to withhold third point where defendant satisfies

requirements); Restatement (Second) of Contracts § 73 (performance of a legal duty

owed a promisor is not consideration). The immunity provision exempted crimes of

violence, exposing Mr. Bell at the time to a second, stacked § 924(c) charge and

prosecution for the substantive Hobbs Act robberies, and did not bar prosecution

under § 922(g), the only nonviolent crime arguably implicated. See United States v.

Jordan, 509 F.3d 191, 196 (4th Cir. 2007) (identical immunity provision “permits the

government to prosecute” the defendant “for crimes ‘related’ to those charged . . . so

long as they do not require the Government to prove the conduct . . . as an element”).

No other terms of the agreement provided consideration. See C.A.S.A. 32-33; United

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States v. Wallace, 22 F.3d 84 (4th Cir. 1994) (identical agreement depending on

government motion “a purely discretionary one” and creates “no enforceable

obligation”); Restatement (Second) of Contracts § 77 (Illusory and Alternative

Promises). Further, Mr. Bell’s integrated plea agreement provided an exhaustive list

of remedies in case of breach, including rescission, but did not allow for dismissal of

an appeal taken in breach of the agreement. See 7 Williston on Contracts § 15:14 (4th

ed.) (negotiated exclusive remedies generally enforceable).

Further, review on the merits of Mr. Bell’s sentencing appeal would not be

pointless. Mr. Bell challenged, as substantively unreasonable, his sentence at the

statutory maximum of 240 months on a final guideline range of 87-108 months. While

Mr. Bell’s appeal was pending the Eleventh Circuit held an identical sentence to be

substantively unreasonable for a defendant convicted of more Hobbs Act robberies,

with worse criminal history, and a higher Guidelines range. See United States v.

Martin, 2025 WL 88687 (11th Cir. 2025) (per curiam).

CONCLUSION

The Court should hold Mr. Bell’s petition to await a decision in Hunter, and

grant with remand in light of Hunter if appropriate. In the alternative, the petition

for a writ of certiorari should be granted.

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Respectfully submitted,

GEREMY C. KAMENS

Federal Public Defender

for the Eastern District of Virginia

Joseph S. Camden

Counsel of Record

Assistant Federal Public Defender

Office of the Federal Public Defender

for the Eastern District of Virginia

701 East Broad Street, Suite 3600

Richmond, VA 23219

(804) 565-0830

Joseph_Camden@fd.org

January 30, 2026

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