Petition for Writ of Certiorari — Davantae London, Petitioner v. United States

No. __________

IN THE

SUPREME COURT OF THE UNITED STATES

DAVANTAE LONDON,

Petitioner,

v.

UNITED STATES OF AMERICA

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

______________

PETITION FOR A WRIT OF CERTIORARI

____________

J. Dennis Hester

Counsel of Record

4801 Woodway Drive, Suite 300

Houston, Texas 77056

Tel. 325-212-8272

dennis_hester@outlook.co

QUESTION PRESENTED

In the decision below, the Fifth Circuit held that a general appeal waiver in a

plea agreement prohibits an appeal that challenges the consecutive nature of a

sentence, even if the appeal waiver does not specifically address such a claim. The

Third, Seventh, Tenth, and D.C. Circuits hold the same view. In contrast, the First

and Second Circuits hold that a general appeal waiver does not bar a challenge to

the consecutive nature of a sentence. The Sixth Circuit takes a middle-ground

approach, holding that a general appeal waiver does not bar a challenge to the

consecutive nature of a sentence, unless the waiver cites to 18 U.S.C. § 3742.

This case also presents the same question for which this Court has granted

certiorari in Mason Hunter v. United States, No. 24-1063 (Oct. 10, 2025): Whether

the only permissible exceptions to a general appeal waiver are for claims of

ineffective assistance of counsel or that the sentence exceeds the statutory maximum.

As such, this petition should be held pending the final decision in Hunter, and

addressed considering that decision. If the Court does not reach the question

presented by Hunter, this petition should be granted.

The questions presented, therefore, are:

1. Whether a general appeal waiver that does not mention the right to challenge

the consecutive nature of a sentence bars such a challenge.

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2. Whether the only permissible exceptions to a general appeal waiver are for

claims of ineffective assistance of counsel or that the sentence exceeds the

statutory maximum.

STATEMENT OF RELATED PROCEEDINGS

This case arises from the following proceedings:

• United States v. London, No. 25-20102 (5th Cir.) (appeal dismissed based on

appeal waiver).

• United States v. London, No. 4:20-CR-154-1 (S.D. Tex).

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TABLE OF CONTENTS

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

Statement of Related Proceedings ………………………………………….…….. ii

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

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

Opinions Below ……………………………………………...…………………… 1

Jurisdiction ……………………………………………………..…………………. 1

Relevant Constitutional Provision ………………………….…………………….. 1

Statement of the Case …………………………………………………………….. 1

A. The Plea Agreement and Sentencing ………………………………………. 2

B. The Appeal ……………………………...……...………………………….. 4

Reasons for Granting the Petition ………………………………...………………. 5

A. The Circuits are split on whether a general appeal

waiver bars a challenge to the consecutive nature of a sentence ……...…… 5

B. This case presents an issue that will be addressed by this

Court in Hunter v. United States ……………………………….………….. 9

Conclusion ………………………………………...…………………………….. 10

Appendix

(Court of Appeals Order and Plea Agreement) …………………………………. 1a

iii

TABLE OF AUTHORITIES

Cases

Cook v. United States, 111 F.4th 237 (2d Cir. 2024) …………………………….. 7

Hunter v. United States, No. 24-1063 (Oct. 10, 2025) ......................................... i, 9

Missouri v. Frye, 566 U.S. 134 (2012) ………………………………………… 2, 7

United States v. Andruchuk, 122 F.4th 17 (1st Cir. 2024) ………………….…….. 9

United States v. Banks, 743 F.3d 56 (3d Cir. 2014) ……………………………. 5-6

United States v. Belcher, 637 F. App’x. 515, 516 (10th Cir. 2016) …………….... 6

United States v. Bowman, 634 F.3d 357 (6th Cir. 2011) …………………………. 6

United States v. Brown, 232 F.3d 44 (2d Cir. 2000) …………………...………… 5

United States v. Callier, 565 F. App'x 423 (6th Cir. 2014) ………………….…… 6

United States v. Darby, 549 Fed.App’x. 499 (6th Cir. 2014) ………………….…. 6

United States v. Jackson, 26 F.4th 994 (D.C. Cir. 2022) ……………………..….. 6

United States v. Lacy, 813 F.3d 654 (7th Cir. 2016) ……………………...…… 6, 8

United States v. Marsanico, 61 F.3d 666 (8th Cir. 1995) ........................................ 9

United States v. Ortiz, 784 F. App’x 285 (5th Cir. 2019) ………………...……… 6

United States v. Rivera-Santiago, 834 F. App'x 630 (2d Cir. 2020) …………...… 5

United States v. Santiago-Burgos, 750 F.3d 19 (1st Cir. 2014) .............................. 5

United States v. Stearns, 479 F.3d 175 (2d Cir. 2007) ………………………… 6, 8

United States v. Wells, 29 F.4th 580, 587 (9th Cir. 2022) ……………………...… 9

iv

United States v. Williams, 260 F.3d 160 (2d Cir. 2001) ……………………..…… 5

Statutes

18 U.S.C. § 3742 ……………………………………………..……………… i, 3, 6

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

Rule

U.S. SUP. CT. R. 10(a) ……………………………………………………….. 5, 7, 8

U.S. Constitutional Amendment

U.S. CONST. AM. V …………………………………………..…………………… 1

Sentencing Guidelines

U.S.S.G. Ch. 1, Pt. A ………………………………………….………………….. 7

U.S.S.G. § 5G1.3 …………………………………………………...…………….. 9

Miscellaneous

Nancy J. King & Michael E. O'Neill,

Appeal Waivers and the Future of Sentencing Policy,

55 DUKE L.J. 209 (2005) ……………………………………………. 7

U.S. DEP’T OF JUST., CRIM. RES. MANUAL § 626 (2024) …………………………. 8

U.S. SENT. COMM’N, Sourcebook of Federal Sentencing Statistics (2025) …….… 7

v

PETITION FOR WRIT OF CERTIORARI

Petitioner Davantae London petitions for a writ of certiorari to review the

judgment of the United States Court of Appeals for the Fifth Circuit in this case.

OPINIONS BELOW

The Fifth Circuit’s order dismissing this case (Pet. App. 1a) is unreported.

JURISDICTION

The Fifth Circuit entered judgment on November 11, 2025. Pet. App. 1a. The

deadline to file a petition for writ of certiorari is February 9, 2026. This Court has

jurisdiction under 28 U.S.C. § 1254(1).

RELEVANT CONSTITUTIONAL PROVISION

The Fifth Amendment to the United States Constitution provides, in relevant

part: “No person shall be . . . deprived of life, liberty, or property, without due process

of law . . . .” U.S. CONST. AM. V.

STATEMENT OF THE CASE

This case presents an opportunity to resolve a circuit split concerning general

appeal waivers in plea agreements, which thousands of defendants enter each year.

Below, the Fifth Circuit found that Mr. London’s general appeal waiver, which

did not specifically waive a challenge to the consecutive nature of his sentence,

prohibited Mr. London’s challenge to the consecutive nature of his federal sentence

to his undischarged term of state incarceration. The same approach is applied by the

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Third, Seventh, Tenth, and D.C. Circuits. Directly conflicting with this approach, the

First and Second Circuits would have allowed Mr. London to challenge the

consecutive nature of his sentence.

This is a question of importance because the federal criminal justice system

“is for the most part a system of pleas, not a system of trials.” Missouri v. Frye, 566

U.S. 134, 143 (2012). Tens of thousands of defendants resolve their cases by plea

each year, and many of those cases involve a broad and general appeal waiver that

waives appeal of “the sentence.”

On March 4, 2020, while serving a 10-year state sentence based on a Texas

robbery conviction, Mr. London was federally indicted in the United States District

Court for the Southern District of Texas. ROA.18. Mr. London was brought from

state prison to federal court for arraignment. ROA.28.

Through a later superseding indictment, Mr. London was charged with 13

counts: eight counts of robbery (Counts 1, 2, 4, 5, 7, 9, 10, and 12); three counts of

brandishing a firearm in connection with a robbery (Counts 3, 11, and 13); and two

counts of discharging a firearm in connection with a robbery (Counts 6 and 8).

ROA.92-101.

A.

The Plea Agreement and Sentencing.

On September 23, 2024, Mr. London and the government entered into a plea

agreement in which Mr. London pleaded guilty to two counts of interference with

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commerce by robbery and two counts of brandishing a firearm in relation to those

robberies. ROA.216. The plea agreement contained an appeal waiver, which stated:

Defendant is aware that Title 28, United States Code, section

1291, and Title 18, United States Code, section 3742, afford a

defendant the right to appeal the conviction and sentence imposed.

Defendant is also aware that Title 28, United States Code, section

2255, affords the right to contest or “collaterally attack” a

conviction or sentence after the judgment of conviction and

sentence has become final. Defendant knowingly and voluntarily

waives the right to appeal or “collaterally attack” the conviction

and sentence, except that Defendant does not waive the right to

raise a claim of ineffective assistance of counsel on direct appeal,

if otherwise permitted, or on collateral review in a motion under

Title 28, United States Code, section 2255.

Pet.App.4a-5a.

The Presentence Investigation Report (PSR) recommended that Mr. London’s

federal sentence run consecutively to his undischarged state term of incarceration.

ROA.388 (PSR ¶ 85). Mr. London objected to this recommendation and argued that

the federal sentence should run concurrently because the federal conduct was

relevant to the state conduct. ROA.422-23.

At sentencing, the district court overruled the defense’s objection, finding that

the state case and federal case were separate conduct. ROA.344-45. The court

announced a total sentence of 20 months on the robbery counts. ROA.359. It

imposed the mandatory minimum consecutive sentence of 84 months on each of the

convictions for brandishing a firearm. ROA.360. The total term of imprisonment

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was 188 months. ROA.360. It imposed the entire term of 188 months to run

consecutively to Mr. London’s undischarged state sentence. ROA.361.

On March 7, 2025, a judgment reflecting the pronounced sentence was

entered. ROA.243-48. Mr. London filed a notice of appeal on March 21, 2025.

ROA.253.

B.

The Appeal.

Mr. London challenged the consecutive nature of his sentence on appeal,

arguing that, because the basis for the state term of incarceration was relevant to the

federal case, the Sentencing Guidelines recommended a concurrent sentence. See

U.S.S.G. § 5G1.3(b). In response, the government argued that the waiver of appeal

in Mr. London’s plea agreement included his challenge to the consecutive nature of

the sentence. See United States v. London, No. 25-20102 (5th Cir. Oct. 29, 2025),

Doc. 42. Mr. London responded that the waiver did not bar the appeal because (1) it

was a general waiver that did not address the consecutive nature of the sentence, and

(2) enforcing the waiver would result in a miscarriage of justice. See United States

v. London, No. 25-20102 (5th Cir. Nov. 6, 2025), Doc. 43.

On November 11, 2025, the Fifth Circuit issued an order granting the

government’s motion to dismiss. Pet. App. 1a.

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REASONS FOR GRANTING THE PETITION

A. The Circuits are split on whether a general appeal waiver bars a challenge

to the consecutive nature of a sentence.

This petition should be granted because this case presents a circuit split on

whether a general appeal waiver prohibits a challenge to the consecutive nature of a

sentence. U.S. SUP. CT. R. 10(a). This “important matter” needs to be resolved. U.S.

SUP. CT. R. 10(a).

The Second Circuit holds that a general waiver of appeal does not prohibit a

challenge to the consecutive nature of a sentence. United States v. Williams, 260 F.3d

160, 164-65 (2d Cir. 2001). The Second Circuit has “routinely held” that general

waivers prohibit only a challenge to the length of the sentence, not a challenge to

whether the sentence is consecutive. United States v. Rivera-Santiago, 834 F. App'x

630, 632 (2d Cir. 2020) (collecting cases); Williams, 260 F.3d at 164-65; United

States v. Brown, 232 F.3d 44, 48 (2d Cir. 2000). The First Circuit agrees and holds

that, unless the waiver specifically refers to the consecutive nature of the sentence,

it does not waive such a challenge. United States v. Santiago-Burgos, 750 F.3d 19,

23 (1st Cir. 2014).

Meanwhile, the Third, Fifth, Seventh, Tenth, and D.C. Circuits hold that,

unless the consecutive nature of the sentence is specifically mentioned in a waiver,

a general appeal waiver bars such a challenge. See United States v. Banks, 743 F.3d

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56, 59 (3d Cir. 2014); United States v. Ortiz, 784 F. App’x 285, 286 (5th Cir. 2019)

(unpublished); United States v. Lacy, 813 F.3d 654, 657 (7th Cir. 2016); United

States v. Belcher, 637 F. App’x. 515, 516–17 (10th Cir.2016) (unpublished); United

States v. Jackson, 26 F.4th 994, 1000 (D.C. Cir. 2022).

The D.C. Circuit has stated that an appeal waiver that addresses the length of

a sentence includes an appeal to the consecutive nature of the sentence because,

“whether a sentence runs consecutively or concurrently to another sentence is

inherently determinative of the duration of that sentence.” Jackson, 26 F.4th at 1000.

That position directly conflicts with the Second Circuit, which holds that a

defendant’s waiver of his right to appeal the “length of his sentence,” does not

address the consecutive nature of the sentence. United States v. Stearns, 479 F.3d

175, 178 (2d Cir. 2007).

Finally, the Sixth Circuit takes a different approach. See United States v.

Callier, 565 F. App'x 423, 425 (6th Cir. 2014) (unpublished) (discussing various

cases). Like the First and Second Circuits, a general waiver that does not address the

consecutive nature of a sentence does not prohibit such a challenge. Id. (discussing

United States v. Bowman, 634 F.3d 357 (6th Cir. 2011)). But if the waiver refers to

18 U.S.C. § 3742, which grants defendants the right to appeal a sentence, then the

right to appeal the consecutive sentence is waived. Callier, 565 F. App'x at 425

(discussing United States v. Darby, 549 Fed.App’x. 499, 500–01 (6th Cir. 2014)).

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These varying approaches call for intervention by this Court. They present an

“important matter,” U.S. SUP. CT. R. 10(a), because 97% of federal criminal cases

are resolved by guilty plea. U.S. SENT. COMM’N, Sourcebook of Federal Sentencing

Statistics (2025) at 30. In 2024, 59,922 out of 61,678 federal criminal cases were

resolved by a guilty plea. Id.

There is little doubt that most of these cases involved a plea agreement.

U.S.S.G. Ch. 1, Pt. A (stating “many of the[] cases [resolved by a guilty plea] involve

some form of plea agreement”); Missouri v. Frye, 566 U.S. 134, 143 (2012). This

Court has explained that plea bargaining is “not some adjunct to the criminal justice

system; it is the criminal justice system.” Frye, 566 U.S. at 143-44.

And there is little doubt that most plea agreements contain appeal waivers.

Such waivers have “become the norm.” Cook v. United States, 111 F.4th 237, 254

(2d Cir. 2024) (Robinson, J., dissenting from denial of reh’g en banc). A nationwide

study from 2005 found that 65.2% of defendants who entered plea agreements

waived appellate rights. Nancy J. King & Michael E. O'Neill, Appeal Waivers and

the Future of Sentencing Policy, 55 DUKE L.J. 209, 231 (2005). “There is no reason

to suspect that these numbers would be lower today;” they may be higher. Cook, 111

F.4th at 254 (Robinson, J., dissenting). Appeal waivers are involved in tens of

thousands of criminal cases each year.

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The sample appeal waiver provided by the Department of Justice prohibits the

defendant from “appeal[ing] any sentence within the maximum provided in the

statute(s) of conviction.” U.S. DEP’T OF JUST., CRIM. RES. MANUAL § 626 (2024). As

the law stands today, this language, prohibiting appeal of a sentence within the

statutory maximum, would prohibit an appellate challenge to the consecutive nature

of a sentence in some parts of the nation, but not in others. Compare, Stearns, 479

F.3d at 177, 178 (similar language did not prohibit challenge), with, Lacy, 813 F.3d

at 657 (opposite).

This circuit split on an “important matter” is squarely presented for review by

this case. U.S. SUP. CT. R. 10(a). Mr. London challenged the consecutive nature of

the sentence, both in district court and on appeal. The Fifth Circuit dismissed the

appeal based on the appeal waiver. Pet.App.1a. The appeal waiver in this case is

general in nature and does not specifically mention the consecutive nature of the

sentence. Pet. App.4a-6a. It states that Mr. London “knowingly and voluntarily

waives the right to appeal or ‘collaterally attack’ the conviction and sentence . . . .”

Pet.App.5a. The circuits are split on whether such language waives Mr. London’s

challenge to the consecutive nature of his sentence. And this case presents an

opportunity to resolve that split.

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B. This case presents an issue that will be addressed by this Court in Hunter v.

United States.

Second, this case presents an issue currently under review by this Court in

Mason Hunter v. United States, No. 24-1063 (Oct. 10, 2025). In Hunter, this Court

granted certiorari to resolve a circuit split concerning whether the only permissible

exceptions to a general appeal waiver are for claims of ineffective assistance of

counsel or that the sentence exceeds the statutory maximum.

Within this issue, this Court will likely address the validity of an approach

taken by some circuits that allow an exception to an appeal waiver when enforcing

the waiver presents a “miscarriage of justice.” See e.g. United States v. Andruchuk,

122 F.4th 17, 23 (1st Cir. 2024); United States v. Wells, 29 F.4th 580, 587-88 (9th

Cir. 2022).

Imposing an unjustified consecutive sentence—as in this case—is a

miscarriage of justice. See United States v. Marsanico, 61 F.3d 666, 668 (8th Cir.

1995) (agreeing with parties that failure to properly apply U.S.S.G. § 5G1.3

pertaining to consecutive sentences, “would result in miscarriage of justice”). Thus,

this petition should be held pending the final decision in Hunter and disposed of as

appropriate in light of that decision. In the event that the Court does not reach the

question presented in Hunter, this petition should be granted.

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CONCLUSION

This petition for a writ of certiorari should be granted to address the first

question: whether a general appeal waiver bars a challenge to the consecutive nature

of the sentence. Additionally, the petition should be held pending the final decision

in Hunter and addressed considering that decision. If the Court does not reach the

question presented by Hunter, this petition should be granted based on the second

question presented.

Respectfully submitted,

/s/ Dennis Hester

J. Dennis Hester

Counsel of Record

4801 Woodway Drive, Suite 300

Houston, Texas 77056

Tel. 325-212-8272

dennis_hester@outlook.com

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