Opposition Brief — Ton Ton Aquino, Petitioner v. United States

No. 25-79

In the Supreme Court of the United States

TON TON AQUINO, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

D. JOHN SAUER

Solicitor General

Counsel of Record

MATTHEW R. GALEOTTI

Acting Assistant

Attorney General

WILLIAM G. CLAYMAN

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

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

agreement.

(I)

TABLE OF CONTENTS

Page

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

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

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

Argument....................................................................................... 7

Conclusion ................................................................................... 14

TABLE OF AUTHORITIES

Cases:

Albrecht v. United States, 329 U.S. 599 (1947) ................... 10

Allen v. United States, 144 S. Ct. 859 (2024) ........................ 7

Castaneira v. Mayorkas,

682 F. Supp. 3d 19 (D.D.C. 2023), aff ’d in part,

vacated in part, and remanded,

138 F.4th 540 (D.C. Cir. 2025) ........................................... 13

Cutter v. Wilkinson, 544 U.S. 709 (2005) ............................ 11

Garza v. Idaho, 586 U.S. 232 (2019) ...................................... 8

Goldston v. United States, 141 S. Ct. 828 (2020) .................. 8

Harper v. United States, 143 S. Ct. 582 (2023) ..................... 8

Jimenez v. United States, 143 S. Ct. 1745 (2023) ................. 7

Jones v. United States, 145 S. Ct. 2779 (2025) ...................... 7

Margalli-Olvera v. INS, 43 F.3d 345 (8th Cir. 1994) ......... 10

Ricketts v. Adamson, 483 U.S. 1 (1987) ................................ 8

Rivers v. United States, 144 S. Ct. 215 (2023) ...................... 7

Rudolph v. United States,

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

cert. denied, 145 S. Ct. 1068 (2025) ................................... 13

Sanchez v. United States, 142 S. Ct. 410 (2021) ................... 8

Town of Newton v. Rumery, 480 U.S. 386 (1987) ................ 8

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

cert. denied, 540 U.S. 997 (2003) ..................................... 8, 9

(III)

IV

Cases—Continued:

Page

United States v. Bushert,

997 F.2d 1343 (11th Cir. 1993), cert. denied,

513 U.S. 1051 (1994).......................................................... 7, 9

United States v. Del Valle-Cruz,

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

United States v. Dodge,

597 F.3d 1347 (11th Cir.),

cert. denied, 562 U.S. 961 (2010) ....................................... 13

United States v. Elliott,

264 F.3d 1171 (10th Cir. 2001) ............................................. 9

United States v. Gebbie,

294 F.3d 540 (3d Cir. 2002) ................................................ 10

United States v. Goodall, 21 F.4th 555 (9th Cir.

2021), cert. denied, 142 S. Ct. 2666 (2022) .................. 11, 12

United States v. Grinard-Henry,

399 F.3d 1294 (11th Cir.), cert. denied,

544 U.S. 1041 (2005).............................................................. 7

United States v. Guillen,

561 F.3d 527 (D.C. Cir. 2009) ......................................... 9, 11

United States v. Hahn,

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

United States v. Hernandez,

134 F.3d 1435 (10th Cir. 1998) ............................................. 9

United States v. Johnston, 268 U.S. 220 (1925).................. 10

United States v. Juvenile Male,

564 U.S. 932 (2011).............................................................. 14

United States v. Khattak, 273 F.3d 557 (3d Cir. 2001) ........ 8

United States v. Marin, 961 F.2d 493 (4th Cir. 1992) ......... 8

United States v. Melancon,

972 F.2d 566 (5th Cir. 1992) ................................................. 8

United States v. Navarro-Botello, 912 F.2d 318

(9th Cir. 1990), cert. denied, 503 U.S. 942 (1992) ............... 8

United States v. Riggi, 649 F.3d 143 (2d Cir. 2011) ............. 8

V

Cases—Continued:

Page

United States v. Ruiz, 536 U.S. 622 (2002) ......................... 12

United States v. Teeter, 257 F.3d 14 (1st Cir. 2001)......... 8, 9

United States v. Toth, 668 F.3d 374 (6th Cir. 2012) ............. 8

United States v. Woolley,

123 F.3d 627 (7th Cir. 1997) ................................................. 8

Zamarripa v. United States, 141 S. Ct. 2571 (2021) ............ 8

Statutes, guideline, and rule:

Sex Offender Registration and Notification Act,

34 U.S.C. 20901 et seq. .......................................................... 5

34 U.S.C. 20911(5)(A)(ii) ................................................. 13

34 U.S.C. 20911(7)(G) ...................................................... 13

34 U.S.C. 20911(7)(I) ....................................................... 13

34 U.S.C. 20913 ................................................................ 14

34 U.S.C. 20913(a) ........................................................... 13

34 U.S.C. 20915 ................................................................ 14

18 U.S.C. 4 ........................................................................ 1, 2, 9

18 U.S.C. 2252A(a)(2) .............................................................. 2

18 U.S.C. 2252A(a)(5) .......................................................... 3, 5

18 U.S.C. 2252A(b)(1) .............................................................. 9

42 U.S.C. 1983 .......................................................................... 8

United States Sentencing Guidelines,

§ 5D1.2(a)(3) .......................................................................... 4

Sup. Ct. R. 10 ......................................................................... 10

Miscellaneous:

Bureau of Prisons, U.S. Dep’t of Justice,

Find an Inmate, www.bop.gov/inmateloc

(No. 27575-510) ................................................................... 14

In the Supreme Court of the United States

No. 25-79

TON TON AQUINO, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. 1a-12a)

is unreported but available at 2024 WL 5155129.

JURISDICTION

The judgment of the court of appeals was entered on

December 18, 2024. A petition for rehearing was denied

on March 20, 2025 (Pet. App. 24a). On June 11, 2025,

Justice Thomas extended the time within which to file a

petition for a writ of certiorari to and including July 18,

2025, and the petition was filed on that date. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

Following a guilty plea in the United States District

Court for the Southern District of Georgia, petitioner

was convicted of misprision of a felony, in violation of 18

U.S.C. 4. Pet. App. 13a. The district court sentenced

(1)

2

petitioner to 16 months of imprisonment, to be followed

by one year of supervised release. Id. at 14a-15a. The

court of appeals dismissed petitioner’s appeal based on

the appeal waiver in his plea agreement. Id. at 1a-12a.

1. In February 2020, petitioner sent his girlfriend a

Facebook message containing a six-minute video of an

adult man engaging in oral and vaginal sex with a minor

girl. Presentence Investigation Report (PSR) ¶¶ 6-10.

When his girlfriend remarked on the minor’s young appearance in the video, petitioner replied: “Yup but [she]

is liking it.” PSR ¶ 10. Facebook reported petitioner’s

conduct to the National Center for Missing and Exploited Children, which in turn reported it to authorities

in Savannah, Georgia, where petitioner was stationed as

an active-duty member of the U.S. Army. PSR ¶ 6.

Agents with the Army’s Criminal Investigation Division interviewed petitioner about the video, which he

claimed to have gotten from a group chat on Facebook.

PSR ¶ 11. Petitioner admitted that he had distributed

the video over Facebook, and did so even though he believed that the victim in the video was a minor. Ibid.

2. a. On October 5, 2022, a grand jury in the Southern District of Georgia returned an indictment charging

petitioner with one count of distributing child pornography, in violation of 18 U.S.C. 2252A(a)(2). PSR ¶ 2.

Petitioner and the government subsequently entered

into a written plea agreement, in which petitioner

agreed to plead guilty to misprision of a felony, in violation of 18 U.S.C. 4. Pet. App. 32a-41a.

The plea agreement explained that the statutory

penalty for a violation of 18 U.S.C. 4 is not more than

three years of imprisonment, with one year of supervised release. Pet. App. 34a. And as part of the agreement, petitioner admitted that he knowingly possessed

3

the video of a minor engaged in sexually explicit conduct

—a felony in violation of 18 U.S.C. 2252A(a)(5)—and

that he both failed to report that material, and also took

steps to conceal it from law enforcement and the Army.

Pet. App. 33a-34a. In exchange for petitioner’s guilty

plea, the government agreed to move to dismiss the

child-pornography charge. Id. at 35a.

The plea agreement further stated that petitioner

“entirely waives his right to a direct appeal of his conviction and sentence on any ground,” except if (1) “the

court enters a sentence above the statutory maximum,”

(2) “the court enters a sentence above the advisory Sentencing Guidelines range found to apply by the court at

sentencing,” or (3) “the [g]overnment appeals the sentence.” Pet. App. 36a-37a. “Absent those exceptions,”

petitioner agreed to “explicitly and irrevocably instruct[] his attorney not to file an appeal.” Id. at 37a.

Petitioner also acknowledged in the plea agreement

that the district court was not bound by the parties’ sentencing recommendations and that he would “not be allowed to withdraw his plea of guilty if he receives a more

severe sentence than he expects.” Id. at 34a.

Petitioner “initialed each page of the agreement and

then signed the last page, agreeing that he had reviewed the agreement with his attorney, understood

each provision, and voluntarily agreed to it.” Pet. App.

3a; see id. at 40a. Petitioner’s counsel also signed the

agreement, affirming that he had “carefully reviewed

each and every part” of the agreement with petitioner,

and that he believed petitioner “fully and completely

unders[tood]” the agreement and that petitioner’s decision to plead guilty was “an informed, intelligent, and

voluntary one.” Id. at 40a-41a.

4

b. The district court held a change-of-plea hearing.

Pet. App. 42a-67a. After placing petitioner under oath

and ensuring his competency, the court confirmed that

petitioner understood that the maximum sentence he

could receive pursuant to the plea agreement included

three years of imprisonment, followed by one year of

supervised release. Id. at 45a-53a. The court further

confirmed that petitioner understood that he would be

subject to “rules” and “orders of the Court” during any

term of supervised release, and that he could face additional imprisonment if he violated any one of those conditions. Id. at 55a.

The district court then displayed the signed plea

agreement for petitioner; confirmed with petitioner

that he had reviewed the full agreement with his attorney; and received petitioner’s assurance that he understood each page of the agreement. Pet. App. 57a-59a.

Afterward, at the court’s request, the government summarized “the material portions” of the agreement, reiterating that petitioner was, among other things, waiving his right to appeal on any grounds other than the

three listed in the agreement. Id. at 59a-61a. The court

then read those exceptions aloud, and confirmed with

petitioner that he was “willing to give up [his] appeal

rights with those exceptions as part of [his] plea bargain

with the United States.” Id. at 61a. The court then

found petitioner competent to plead guilty, and accepted his plea as knowing and voluntary. Id. at 64a.

3. Before sentencing, the Probation Office compiled

a presentence report in which it calculated petitioner’s

advisory Sentencing Guidelines range as 10 to 16

months of imprisonment. PSR ¶ 59. The presentence

report also noted that Sentencing Guidelines § 5D1.2(a)(3)

recommended that the district court impose a one-year

5

term of supervised release. PSR ¶ 62. In a later-added

addendum, following a submission by the government,

the Probation Office recommended that the court order

petitioner to comply with the requirements of the Sex

Offender Registration and Notification Act (SORNA),

34 U.S.C. 20901 et seq., as a condition of any term of supervised release. Addendum to PSR 5-7. The addendum explained that petitioner’s offense of conviction

triggers registration obligations under SORNA, because he admitted to possessing child pornography as

part of his plea. Ibid.

The district court held a sentencing hearing on January 16, 2024. Pet. App. 68a-128a. Petitioner objected,

inter alia, to the Probation Office’s recommendation

that he be ordered to register under SORNA as a condition of any term of supervised release. Id. at 71a, 77a81a. The court overruled that objection, observing that

(1) SORNA’s registration obligations apply when a defendant is convicted of an offense that “involves” the

possession of child pornography; (2) relevant precedent

instructs that courts should look “beyond” the “elements of the offense of conviction” to determine whether an “offense involve[s]” the possession of child pornography or other conduct; and (3) petitioner’s offense

“involved [the] possession of child pornography” based

on his admissions in his plea agreement. Id. at 80a-85a.

The court also stated that the predicate felony for his

misprision-of-a-felony conviction—the possession of

child pornography, in violation of 18 U.S.C.

2252A(a)(5)—was “by its nature a sex offense against a

minor,” and that his admission to possessing child pornography “meets with the letter of [SORNA] as [i]t has

been interpreted by the Eleventh Circuit.” Pet. App.

84a.

6

The district court then calculated petitioner’s sentencing range under the Guidelines as 10 to 16 months

of imprisonment, and imposed a term of imprisonment

of 16 months. Pet. App. 84a-85a, 116a-120a. The court

also imposed a one-year term of supervised release with

a condition that petitioner “must comply with the requirements of [SORNA] as directed by the probation officer, the Bureau of Prisons or any state sex offender

registration agency in which [petitioner] resides, works,

is a student or is convicted of a qualifying offense.” Id.

at 118a. After imposing that sentence, the court dismissed the pending child-pornography indictment and

reminded petitioner that, pursuant to his plea, he had

waived his right to appeal “with limited exceptions[.]”

Id. at 120-122a.

4. Petitioner filed an appeal in which he argued

(among other things) that the district court had erred

in requiring him to comply with SORNA as a condition

of supervised release, on the theory that he had not

been convicted of a SORNA-eligible offense. Pet. C.A.

Br. 16-22. In addition to responding to that argument

on the merits, the government moved to dismiss the appeal pursuant to petitioner’s appeal waiver. Pet. App.

8a-9a. In reply, petitioner asserted that the SORNA

condition “effectively impos[ed] a punishment 12 years

beyond the statutory maximum of the offense for which

he was sentenced,” and therefore qualified for the appeal waiver’s exception for an appeal where the sentence “exceeds the statutory maximum.” Pet. C.A. Reply Br. 2.

The court of appeals dismissed petitioner’s appeal in

an unpublished per curiam opinion. Pet. App. 1a-12a.

The court first found that the appeal waiver was knowing, voluntary, and therefore enforceable, observing

7

that the district court had “specifically questioned” petitioner during the change-of-plea hearing to confirm

that he was waiving his right to appeal absent three narrow circumstances. Id. at 9a-10a (quoting United States

v. Bushert, 997 F.2d 1343, 1351 (11th Cir. 1993), cert.

denied, 513 U.S. 1051 (1994)). The court then rejected

petitioner’s attempt to fit his challenge to the SORNAcondition of his supervised release into the agreement’s

exception for sentences above the statutory maximum,

explaining that the term “statutory maximum” refers to

“‘the longest sentence that the statute which punishes a

crime permits a court to impose,’” and that petitioner’s

one-year term of supervised release did not exceed the

maximum term permitted by statute. Id. at 11a-12a

(quoting United States v. Grinard-Henry, 399 F.3d

1294, 1296 (11th Cir.), cert. denied, 544 U.S. 1041

(2005)).

ARGUMENT

Petitioner contends (Pet. 2-3, 12-19) that the court of

appeals erred by enforcing the appeal waiver in his plea

agreement to bar his challenge to the SORNA condition

of his supervised release. The court correctly dismissed

petitioner’s appeal, because he validly waived his right

to appeal his sentence on that ground. Petitioner does

not identify a conflict in the courts of appeals implicated

by this case; and at any rate, this case would be an exceptionally poor vehicle for resolving any disagreement.

This Court has recently denied review of petitions raising similar issues,1 and the same course is warranted

here.

See, e.g., Jones v. United States, 145 S. Ct. 2779 (2025) (No. 246505); Allen v. United States, 144 S. Ct. 859 (2024) (No. 23-6405);

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

1

8

1. This Court has recognized that a defendant may

knowingly and voluntarily waive constitutional or statutory rights—including appellate rights—as part of a

plea agreement. See, e.g., Garza v. Idaho, 586 U.S. 232,

238-239 (2019) (waiver of right to appeal); Ricketts v.

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

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

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

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

statutory rights are subject to waiver in the absence of

an “affirmative indication” to the contrary by Congress.

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

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

In accord with those principles, the courts of appeals

have uniformly recognized that a defendant’s voluntary

and knowing waiver in a plea agreement of the right to

appeal is enforceable. 2 As those courts have explained,

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

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

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

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

States, 141 S. Ct. 828 (2020) (No. 20-5862). Similar issues are also

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

and Hunter v. United States, No. 24-1063 (filed Apr. 4, 2025), both

of which are pending.

2

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

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

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

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

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

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

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

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

Cir. 1990), cert. denied, 503 U.S. 942 (1992); United States v.

9

appeal waivers benefit defendants by providing them

with “an additional bargaining chip in negotiations with

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

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

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

benefit the government and the courts by enhancing the

finality of judgments and sentences and discouraging

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

561 F.3d 527, 530 (D.C. Cir. 2009); United States v. Andis, 333 F.3d 886, 889-890 (8th Cir.) (en banc), cert. denied, 540 U.S. 997 (2003); Teeter, 257 F.3d at 22-23.

This case illustrates the mutual benefits of appeal

waivers. Pursuant to the plea agreement, petitioner

agreed to plead guilty to misprision of a felony, and the

government agreed to dismiss the child-pornographydistribution charge. Pet. App. 35a. The distribution

charge carried a statutory-minimum sentence of five

years of imprisonment and a statutory-maximum sentence of 20 years, 18 U.S.C. 2252A(b)(1), while the offense to which petitioner pleaded guilty carried a statutory-maximum sentence of three years of imprisonment, 18 U.S.C. 4. In exchange for that substantially

lower sentencing exposure, petitioner agreed (among

other things) to waive his right to file a direct appeal

except in three enumerated circumstances. Pet. App.

36a-37a.

The court of appeals correctly enforced the appeal

waiver. Plea agreements are contractual in nature, and

the first rule of contracts is that parties must be held to

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

Hernandez, 134 F.3d 1435, 1437-1438 (10th Cir. 1998); United States

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

513 U.S. 1051 (1994); United States v. Guillen, 561 F.3d 527, 529532 (D.C. Cir. 2009).

10

Albrecht v. United States, 329 U.S. 599, 603 (1947) (applying principle that when a party to a contract “stands

upon its terms to enforce them for his own advantage,

he cannot at the same time successfully disavow those

terms so far as he conceives them to be to his disadvantage”). The terms of that bargain are set by “the

text of the contract.” United States v. Gebbie, 294 F.3d

540, 545 (3d Cir. 2002); see United States v. Hahn, 359

F.3d 1315, 1324-1325 (10th Cir. 2004) (en banc) (per curiam); Margalli-Olvera v. INS, 43 F.3d 345, 351 (8th

Cir. 1994). And here, petitioner’s plea agreement included an express waiver of his right to file “a direct appeal of his sentence” unless (1) “the [district] court enter[ed] a sentence above the statutory maximum,” (2)

“the court enter[ed] a sentence above the advisory Sentencing Guidelines range found to apply by the court at

sentencing,” or (3) “the [g]overnment appeal[ed] the

sentence.” Pet. App. 36a-37a.

Petitioner no longer appears to dispute that his challenge to a condition of his supervised release falls within

the scope of the text of his appeal waiver. Pet. 19-20;

see Pet. App. 10a. Nor would such a factbound dispute

warrant this Court’s review. See Sup. Ct. R. 10; see

also, e.g., United States v. Johnston, 268 U.S. 220, 227

(1925) (explaining that the Court ordinarily does not

“grant * * * certiorari to review evidence and discuss specific facts”). Petitioner also does not appear to

dispute that under this Court’s cases, he generally had

the power to bargain away his appellate rights as part

of obtaining a deal from the government. Because petitioner wielded that power knowingly and voluntarily,

the court of appeals rightly held him to the terms of the

bargain he struck, and correctly dismissed his appeal

thereunder.

11

2. Notwithstanding voluntarily entering into a plea

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

appeal waiver is unenforceable because it would result

in a “miscarriage of justice.” Pet. 18. As a threshold

matter, petitioner did not raise this argument on direct

appeal; nor did the court of appeals pass upon it when

dismissing petitioner’s case. Pet. App. 9a-12a. Before

the panel, petitioner did not mention his appeal waiver

until his reply brief. See id. at 9a. And there, he argued

only that he satisfied one of the exceptions to his appeal

waiver—not that the waiver was unenforceable. Ibid.

Only in requesting rehearing en banc did petitioner first

raise a miscarriage-of-justice argument. Id. at 132a137a. But the full court of appeals denied petitioner’s

request without an opinion. Id. at 23a-24a. As a “court

of review, not of first view,” Cutter v. Wilkinson, 544

U.S. 709, 718 n.7 (2005)), this Court should not review

an issue that was not properly raised to—and was not

addressed by—the court below.

In any event, petitioner’s miscarriage-of-justice

claim lacks merit. Most fundamentally, petitioner’s argument that waivers cannot bar appeals challenging

“unlawful” sentences (Pet. 6) would negate one of the

main reasons for having plea agreements in the first

place. The defendant’s belief that his sentence may be

illegal is not a valid basis for disregarding an appeal

waiver. The entire point of an appeal waiver is for a defendant to waive the right to challenge a sentence he

believes is illegal—be it on statutory or constitutional

grounds. See Guillen, 561 F.3d at 529. By design, the

bargaining chip is that the defendant is “giving up all

appeals, no matter what unforeseen events may happen.” United States v. Goodall, 21 F.4th 555, 562 (9th

12

Cir. 2021), cert. denied, 142 S. Ct. 2666 (2022). A “plea

agreement is no different in this respect from any other

contract in which someone may have buyer’s remorse

after an unforeseen future event—the contract remains

valid because the parties knowingly and voluntarily

agreed to [its] terms.” Ibid.

Petitioner’s suggestion (Pet. 2) that he did not

“knowingly or intelligently” waive his appellate rights,

on the theory that he “had no reasonable notice” of his

possible SORNA-condition on supervised release, is

therefore conceptually unsound. Whether or not he anticipated a specific aspect of his sentencing, he knew

that he might not agree with the resolution of issues

that could come up at sentencing. That does not make

his waiver unknowing or unintelligent. See United

States v. Ruiz, 536 U.S. 622, 630 (2002) (explaining that

a knowing and intelligent plea “does not require complete knowledge of the relevant circumstances” and can

be entered “despite various forms of misapprehension

under which a defendant might labor”). And it makes

little sense to deprive the appeal waiver of effect by requiring litigation when a defendant claims that his sentence was unexpected or unlawful.

Petitioner’s claim of surprise about the registration

condition here is especially misplaced. As the district

court explained, petitioner admitted in his plea agreement that he knowingly possessed child pornography,

which was the crime he was trying to conceal for purposes of his conviction for his misprision-of-felony conviction. Pet. App. 33a, 83a-84a. SORNA defines covered “sex offense[s]” that are subject to registration requirements to include any “offense against a minor that

involves” (among other things) the “[p]ossession, production, or distribution of child pornography” or “[a]ny

13

conduct that by its nature is a sex offense against a minor.” 34 U.S.C. 20911(5)(A)(ii), (7)(G) and (7)(I); see 34

U.S. 20913(a). And “every court of appeals to consider

the question”—including the one below—“has held that

a circumstance-specific approach applies” to the “definition of ‘sex offense against a minor.’ ” Castaneira v.

Mayorkas, 682 F. Supp. 3d 19, 29 (D.D.C. 2023), aff ’d in

part, vacated in part, and remanded, 138 F.4th 540 (D.C.

Cir. 2025); see United States v. Dodge, 597 F.3d 1347,

1354 (11th Cir.) (en banc), cert. denied, 562 U.S. 961

(2010).

3. The decision below does not implicate any division

of authority in the courts of appeals. Petitioner cites no

case from any circuit that excused a defendant from his

appeal waiver on miscarriage-of-justice grounds, where

that defendant failed to properly press a miscarriageof-justice claim on appeal. See, e.g., United States v. Del

Valle-Cruz, 785 F.3d 48, 54-55 (1st Cir. 2015) (finding

that defendant had forfeited reliance on miscarriage-ofjustice exception that he had not meaningfully argued

for on appeal).

Petitioner’s failure to properly preserve his miscarriage-of-justice argument is particularly problematic

because it is not entirely clear how the court below

would have handled it, had it been raised. While it has

“declined” to adopt a “general” miscarriage-of-justice

exception, it has not categorically ruled out the possibility of applying one, and has repeatedly considered arguments about adopting a tailored version of this exception. Rudolph v. United States, 92 F.4th 1038, 1048

(11th Cir. 2024), cert. denied, 145 S. Ct. 1068 (2025).

4. This case would also be a poor vehicle for further

review because petitioner has framed his claim solely as

a challenge to a condition of a supervised-release term

14

that is about to expire. But petitioner was released

from the custody of the Bureau of Prisons in December

3, 2024. See Bureau of Prisons, U.S. Dep’t of Justice,

Find an Inmate, www.bop.gov/inmateloc (No. 27575510); see also Pet. App. 13a-15a. Petitioner is therefore

scheduled to complete his one-year term of supervised

release later this year, at which point he will no longer

be subject to the challenged condition of supervision.

And while petitioner asserts (Pet. 20) that the duty to

register under SORNA “imposes severe, often lifelong,

collateral consequences,” those consequences would

arise from the statutory registration requirement,

United States v. Juvenile Male, 564 U.S. 932, 938 (2011)

(per curiam), not a condition of his supervised release.

See 34 U.S.C. 20913, 20915.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

D. JOHN SAUER

Solicitor General

MATTHEW R. GALEOTTI

Acting Assistant

Attorney General

WILLIAM G. CLAYMAN

Attorney

SEPTEMBER 2025