Petition for Writ of Certiorari — Nadarius Barnes, Petitioner v. United States
Supreme Court briefFeb 4, 2026
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No.
In the Supreme Court of the United States
NADARIUS BARNES, PETITIONER,
v.
UNITED STATES
ON PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
NICOLE MASIELLO
DANA KHABBAZ
ARNOLD & PORTER
KAYE SCHOLER LLP
250 West 55th Street,
New York, NY 10019
(212) 836-8000
ANDREW T. TUTT
Counsel of Record
DANA KAGAN MCGINLEY
SPENCER J. FABER
CONNOR MORGAN
ARNOLD & PORTER
KAYE SCHOLER LLP
601 Massachusetts Ave., NW
Washington, DC 20001
(202) 942-5000
andrew.tutt@arnoldporter.com
KENESHA STARLING
DUNCAN
ARNOLD & PORTER
KAYE SCHOLER LLP
700 Louisiana St., Ste. 4000 EDWARD K. FEHLIG, JR.
FEHLIG LAW FIRM, LLC
Houston, TX 77002
(713) 576-2400
3002 S. Jefferson Ave., Ste. 207
St. Louis, MO 63118
(314) 359-5690
QUESTION PRESENTED
Whether, by entering a guilty plea, a defendant
waives his right to appeal his conviction on the basis that
the conduct admitted does not constitute the charged
offense as a matter of law.
(i)
RELATED PROCEEDINGS
United States District Court (D. Kan.):
United States v. Barnes, No. 2:21-cr-20027-JAR-3
(Apr. 25, 2024)
United States Court of Appeals (10th Cir.):
United States v. Butler, No. 24-3061 (Sept. 17, 2025)
United States v. Barnes, No. 24-3062 (Oct. 7, 2025)
Supreme Court of the United States (U.S.):
Barnes v. United States, No. 25A591 (Nov. 19, 2025)
(granting application for extension of time to file
petition for a writ of certiorari)
Butler v. United States, No. 25-863 (Jan. 20, 2026)
(ii)
TABLE OF CONTENTS
Page
Opinions Below ...................................................................... 1
Jurisdiction ............................................................................. 1
Statutory Provisions Involved ............................................. 1
Statement of the Case ........................................................... 1
A. Legal Background ................................................... 4
B. Factual Background ................................................ 9
Reasons for Granting the Petition .................................... 12
I. There Is a Clear and Intractable Conflict Over
a Significant Question.................................................. 12
A. The First, Third, Fifth, Ninth, and Eleventh
Circuits Allow Purely Legal Challenges After
Unconditional Guilty Pleas ................................... 13
B. The Second, Fourth, Seventh, D.C., and
Now the Tenth Circuit Prohibit Purely
Legal Challenges After an Unconditional
Guilty Plea .............................................................. 14
C. The Circuit Split Is Openly Acknowledged ....... 17
II. The Question Presented Is Important and
Warrants Review in this Case.................................... 19
Conclusion ............................................................................ 23
Appendix A: Tenth Circuit Court of Appeals Opinion
(June 25, 2025) ............................................. 1a
Appendix B: Tenth Circuit Court of Appeals Order
Denying Petition for Rehearing
En Banc (Oct. 7, 2025) .............................. 13a
Appendix C: Judgment in a Criminal Case
(Apr. 25, 2024) ............................................ 14a
Appendix D: 18 U.S.C. § 111 ........................................... 29a
Appendix E: 18 U.S.C. § 924(c) ...................................... 30a
(iii)
iv
Appendix F: Fed. R. Crim. P. 11 ................................... 33a
Appendix G: Petition to Enter Plea of Guilty and Order
Entering Plea (Nov. 9, 2023) ................... 39a
TABLE OF AUTHORITIES
Cases
Page(s)
Arbintrode v. State,
67 Ind. 267 (1879) ................................................................ 6
Berg v. United States,
176 F.2d 122 (9th Cir. 1949) .............................................. 6
Blackledge v. Perry,
417 U.S. 21 (1974) ........................................................... 2, 8
Blain v. United States,
22 F.2d 393 (8th Cir. 1927) ................................................ 7
Boody v. People,
43 Mich. 34 (1880) ............................................................... 6
Borden v. United States,
593 U.S. 420 (2021) ....................................................... 3, 10
Bousley v. United States,
523 U.S. 614 (1998) ........................................................... 20
Class v. United States,
583 U.S. 174 (2018) ................................................. 2, 6, 7, 8
Commonwealth v. Hinds,
101 Mass. 209 (1869) ..................................................... 6, 21
Crow v. State,
6 Tex. 334 (1851) ................................................................. 6
Delligatti v. United States,
604 U.S. 423 (2025) ............................................................. 5
Fletcher v. State,
12 Ark. 169 (1851) ............................................................... 6
In re Gallaher,
548 F.3d 713 (9th Cir. 2008) ............................................ 22
Garza v. Idaho,
586 U.S. 232 (2019) ............................................................. 9
Graffi v. United States,
22 F.2d 593 (7th Cir. 1927) ............................................ 6, 7
(v)
vi
Cases—Continued
Page(s)
Grossman v. City of Oakland,
30 Or. 478 (1895) ................................................................. 6
Grzegorczyk v. United States,
997 F.3d 743 (7th Cir. 2021) ...................................... 12, 15
Haynes v. United States,
390 U.S. 85 (1968) ............................................................... 8
Hocking Valley Ry. Co. v. United States,
210 F. 735 (6th Cir. 1914)............................................... 7, 8
Hunter v. United States, cert. granted, No. 24-1063
(oral argument scheduled for Mar. 3, 2026).................. 19
Kachnic v. United States,
53 F.2d 312 (9th Cir. 1931) ............................................ 6, 7
Kellerman v. United States,
295 F. 796 (3d Cir. 1924) .................................................... 7
Lafler v. Cooper,
566 U.S. 156 (2012) ........................................................... 20
Ex parte Lange,
85 U.S. (18 Wall.) 163 (1874) ............................................. 9
Ludwig v. United States,
162 F.3d 456 (6th Cir. 1998) ............................................ 21
Menna v. New York,
423 U.S. 61 (1975) ........................................................... 2, 8
Moore v. State,
53 Neb. 831 (1898) .............................................................. 6
Oesting v. United States,
234 F. 304 (9th Cir. 1916)................................................... 7
People v. Andreu,
23 P.R. 698 (1916) ............................................................... 6
People v. Carter,
34 N.Y.S. 764 (N.Y. Sup. Ct. 1895) ................................... 6
vii
Cases—Continued
Page(s)
Republic v. Ah Cheon,
10 Haw. 469 (1896) .............................................................. 6
Rice v. United States,
30 F.2d 681 (5th Cir. 1929) ............................................ 6, 7
Roberto v. United States,
60 F.2d 774 (7th Cir. 1932) ................................................ 7
Spirou v. United States,
24 F.2d 796 (2d Cir. 1928) .................................................. 7
State v. Hinckley,
4 Idaho 490 (1895) ............................................................... 6
State v. Levy,
119 Mo. 434 (1894) .............................................................. 6
State v. Watson,
41 La. Ann. 598 (1889) ........................................................ 6
United Bhd. of Carpenters & Joiners of Am. v.
United States,
330 U.S. 395 (1947) ......................................................... 7, 8
United States v. Andis,
333 F.3d 886 (8th Cir. 2003) ............................................ 20
United States v. Aquart,
92 F.4th 77 (2d Cir. 2024) .......................................... 15, 17
United States v. Barnes,
141 F.4th 1156 (10th Cir. 2025) ................................... 2, 18
United States v. Bayaud,
16 F. 376 (C.C.S.D.N.Y. 1883) .......................................... 6
United States v. Beck,
250 F.3d 1163 (8th Cir. 2001) .......................................... 16
United States v. Brown,
875 F.3d 1235 (9th Cir. 2017) .......................................... 13
United States v. Cheney,
571 F.3d 764 (8th Cir. 2009) ............................................ 17
viii
Cases—Continued
Page(s)
United States v. Cotton,
535 U.S. 625 (2002) ............................................................. 8
United States v. Davis,
588 U.S. 445 (2019) ............................................................. 5
United States v. De Vaughn,
694 F.3d 1141 (10th Cir. 2012) .................................. 17, 18
United States v. Delgado-Garcia,
374 F.3d 1337 (D.C. Cir. 2004) .................................. 15, 16
United States v. Doe,
698 F.3d 1284 (10th Cir. 2012) ........................................ 18
United States v. Frook,
616 F.3d 773 (8th Cir. 2010) ............................................ 16
United States v. Gallagher,
183 F.2d 342 (3d Cir. 1950) ................................................ 6
United States v. Hedaithy,
392 F.3d 580 (3d Cir. 2004) .............................................. 14
United States v. Jones,
75 F.4th 502 (5th Cir. 2023) ............................................. 14
United States v. Lowe,
512 F. App’x 628 (7th Cir. 2013) ..................................... 17
United States v. McIntosh,
704 F.3d 894 (11th Cir. 2013) .......................................... 18
United States v. Muresanu,
951 F.3d 833 (7th Cir. 2020) ............................................ 17
United States v. Najera,
915 F.3d 997 (5th Cir. 2019) ............................................ 22
United States v. Peter,
310 F.3d 709 (11th Cir. 2002) .......................................... 17
United States v. Pittman,
125 F.4th 527 (4th Cir. 2025) ..................................... 12, 15
ix
Cases—Continued
Page(s)
United States v. Porter,
933 F.3d 226 (3d Cir. 2019) .............................................. 14
United States v. Reasor,
418 F.3d 466 (5th Cir. 2005) ............................................ 14
United States v. Rivera-Morales,
961 F.3d 1 (1st Cir. 2020) ................................................. 22
United States v. Rosa-Ortiz,
348 F.3d 33 (1st Cir. 2003) ............................................... 13
United States v. Rubin,
743 F.3d 31 (2d Cir. 2014) .......................................... 15, 17
United States v. St. Hubert,
909 F.3d 335 (11th Cir. 2018) ................................ 4, 12, 14
United States v. Thomas,
615 F.3d 895 (8th Cir. 2010) ............................................ 17
Weatherby v. United States,
150 F.2d 465 (10th Cir. 1945) ............................................ 7
Weir v. United States,
92 F.2d 634 (7th Cir. 1937) ............................................ 6, 8
Statutes
18 U.S.C.
§ 111 .............................................................................. 3, 4, 5
§ 111(a) ........................................................................... 5, 10
§ 111(b) ....................................................... 3, 4, 5, 10, 11, 12
§ 924(c) ....................................................... 2, 3, 4, 10, 11, 14
§ 924(c)(1)(A) ....................................................................... 4
§ 924(c)(1)(A)(iii) ............................................................... 10
§ 924(c)(3)(A) ....................................................................... 5
§ 924(c)(3)(B) ....................................................................... 5
28 U.S.C. § 1254(1)................................................................. 1
x
Other Authorities
Page(s)
1 Joseph Chitty, A Practical Treatise on the Criminal
Law (New York, Banks, Gould & Co.,
5th Am. ed. 1847) ................................................................ 6
5 Wayne R. LaFave et al., Criminal Procedure
§ 21.6(a) (4th ed. 2025)................................................ 13, 18
15C Charles A. Wright et al., Federal Practice and
Procedure § 3918.7 (2d ed. 2025) .......................... 8, 18, 21
Candace McCoy, Bargaining in the Shadow of the
Hammer: The Trial Penalty in the USA, in The
Jury Trial in Criminal Justice
(Douglas D. Koski ed., 2003) ........................................... 20
Henry J. Friendly, Is Innocence Irrelevant?
Collateral Attack on Criminal Judgments,
38 U. Chi. L. Rev. 142 (1970)......................................... 8, 9
Jackie Gardina, Compromising Liberty: A
Structural Critique of the Sentencing
Guidelines, 38 U. Mich. J.L. Reform 345 (2005) .......... 20
Jefri Wood, Fed. Jud. Ctr., Guideline Sentencing: An
Outline of Appellate Case Law on Selected Issues
(2000) .................................................................................... 9
Kristen N. Sinisi, Comment, The Cheney
Dilemma: Should a Defendant Be Allowed to
Appeal the Factual Basis of His Conviction
After Entering an Unconditional Guilty Plea?,
59 Cath. U. L. Rev. 1171 (2010) ...................................... 19
Nancy J. King et al., When Process Affects
Punishment: Differences in Sentences After
Guilty Plea, Bench Trial, and Jury Trial in Five
Guidelines States, 105 Colum. L. Rev. 959 (2005) ....... 20
xi
Other Authorities—Continued
Page(s)
Nikolaus Albright, Note, Class v. United States:
An Imperfect Application of the MennaBlackledge Doctrine to Post-Guilty Plea
Constitutional Claims,
78 Md. L. Rev. 382 (2019) .......................................... 13, 18
Quin M. Sorenson, Appeal Rights Waivers: A
Constitutionally Dubious Bargain,
Fed. Law., Oct.-Nov. 2018 ............................................. 8, 9
Steven Schmidt, Note, The Need for Review:
Allowing Defendants to Appeal the Factual
Basis of a Conviction After Pleading Guilty,
95 Minn. L. Rev. 284 (2010) ............................................. 18
U.S. Dep’t of Just., Criminal Resource Manual
§ 626 (2026), https://bit.ly/4kdXi80 ................................... 9
U.S. Sent’g Comm’n, 2024 Annual Report .................. 8, 20
William T. Stone, Jr., Note, Waiving Good-Bye to
Inconsistency: Factual Basis Challenges to
Guilty Pleas in Federal Courts,
45 Ga. L. Rev. 311 (2010) ................................................. 18
PETITION FOR A WRIT OF CERTIORARI
OPINIONS BELOW
The opinion of the United States Court of Appeals for
the Tenth Circuit (Pet. App. 1a-12a) is reported at 141
F.4th 1156. The district court’s judgment (Pet. App. 14a28a) was entered on April 25, 2024, and is unreported.
JURISDICTION
The court of appeals entered judgment on June 25,
2025, and denied rehearing on October 7, 2025
(Pet. App. 13a). Justice Gorsuch extended the time within
which to file a petition for certiorari to and including
February 4, 2026. This Court’s jurisdiction is invoked
under 28 U.S.C. § 1254(1).
STATUTORY PROVISIONS INVOLVED
Relevant statutory provisions are reproduced in the
Appendix (Pet. App. 29a-38a).
STATEMENT OF THE CASE
Nearly all federal criminal convictions today result
from guilty pleas. As trials have become exceptional, the
availability of appellate review after a plea has become
one of the most important structural questions in federal
criminal law. This case squarely presents that question.
After fully litigating a purely legal challenge to one of the
charges against him—whether his admitted conduct
constitutes a “crime of violence” under federal law—
petitioner Nadarius Barnes entered an open guilty plea
and later sought appellate review of that preserved legal
issue. The Tenth Circuit refused to consider it, holding
that, because his plea was unconditional, Mr. Barnes
waived his right to challenge whether the facts he
admitted actually amounted to the federal crime to which
he pleaded.
(1)
2
As the government explained in its briefing below,1
that ruling deepens an entrenched and consequential
conflict among the courts of appeals. The First, Third,
Fifth, Ninth, and Eleventh Circuits hold that a defendant
who pleads guilty admits the facts but not their legal
consequences, and therefore retains the right to argue on
appeal that the conduct to which he pleaded does not
constitute an offense under the statute of conviction.
Those courts recognize that such claims go to the
government’s basic authority to convict and thus cannot
be extinguished by a guilty plea. This Court’s decisions in
Blackledge, Menna, and Class2 reflect the same principle:
a plea does not bar claims that challenge the legal validity
of the conviction itself.
On the other side stand the Second, Fourth, Seventh,
Eighth, and D.C. Circuits, and now the Tenth Circuit.
These courts hold that an unconditional guilty plea
categorically waives any argument that the admitted
conduct does not constitute the charged offense—even
when the claim raises a purely legal question, even when
it was preserved through pre-plea litigation, and even
when it concerns the proper interpretation of the statute
defining the offense. Under this approach, once a
defendant pleads guilty unconditionally, the legality of the
conviction becomes unreviewable, regardless of the
merits or preservation of the underlying claim.
This case vividly illustrates the effect of that rule.
Petitioner argued below that assault on a federal officer
U.S. Br. at 22 n.6, United States v. Barnes, 141 F.4th 1156 (10th
Cir. 2025) (No. 24-3062) (“The Eleventh Circuit has held that a defendant’s unconditional guilty plea does not foreclose a challenge to
his § 924(c) conviction on the grounds that the predicate offense was
not a crime of violence.”).
2
Blackledge v. Perry, 417 U.S. 21 (1974); Menna v. New York, 423
U.S. 61 (1975) (per curiam); Class v. United States, 583 U.S. 174
(2018).
1
3
under 18 U.S.C. § 111(b) is not categorically a “crime of
violence” under 18 U.S.C. § 924(c) after this Court’s
decision in Borden v. United States3 because § 111 can be
violated through forms of general-intent or reckless
conduct that do not require purposeful or knowing force
directed at another person. That argument is purely legal.
It does not turn on any disputed facts, and it presents
precisely the kind of statutory question appellate courts
routinely decide. Yet the Tenth Circuit declined to reach
it solely because petitioner entered an unconditional plea.
The implications of the Tenth Circuit’s rule extend far
beyond this case. If allowed to stand, it will guarantee that
many serious questions of criminal law—especially those
involving the scope of federal criminal statutes,
enhancements, and recidivist provisions—will rarely
receive appellate review. In the circuits following the
Tenth Circuit’s rule, a defendant who loses a dispositive
legal motion must either (1) secure the government’s and
the court’s permission to enter a conditional plea (which
the government may withhold for any reason), or
(2) undergo a full trial simply to preserve a purely legal
claim that has nothing to do with factual guilt or
innocence. That approach distorts the plea process,
wastes judicial resources, and grants prosecutors
unilateral power to insulate legal errors from scrutiny.
Because federal criminal adjudication overwhelmingly
occurs through pleas, the practical result is the systemic
erosion of appellate review over critical questions of
federal criminal law.
Equally serious, the Tenth Circuit’s rule undermines
the uniform administration of federal criminal statutes. In
circuits following the minority rule, defendants like
petitioner may obtain appellate review of purely legal
questions regarding the offense’s scope. In the circuits
3
593 U.S. 420 (2021).
4
following the Tenth Circuit’s rule, those same questions
will never be reviewed. The result is a criminal justice
system in which the availability of appellate correction of
a district court’s error turns entirely on geography—
precisely the scenario in which this Court intervenes to
resolve the conflict and restore isonomy under federal
criminal law.
This case is an ideal vehicle for addressing the
conflict. The underlying legal question—whether § 111(b)
is a categorical “crime of violence” after Borden—was
raised early, litigated fully, decided on the merits, and
preserved cleanly. It involves no factual disputes. The
court of appeals dismissed the appeal solely on waiver
grounds, expressly declining to reach the merits. There
are no alternative grounds for affirmance. And the
underlying statutory issue recurs frequently in federal
prosecutions involving § 111, § 924(c), and related
statutes, as demonstrated by the fact that there is a
considerable split over the application of this doctrine
specifically to the exact facts of this case: unconditional
guilty pleas under § 924(c). Compare Pet. App. 6a-9a, with
United States v. St. Hubert, 909 F.3d 335, 341-44 (11th
Cir. 2018).
The question presented here—whether a defendant
who enters an unconditional guilty plea after preserving a
purely legal challenge loses all right to appellate review of
that claim—affects thousands of defendants each year
and determines whether appellate courts can continue to
perform their essential role in maintaining the proper
boundaries of federal criminal law. The conflict is deep
and acknowledged, the stakes are substantial, and this
case presents the issue cleanly. Review is warranted.
Legal Background
1. Two federal statutes frame the legal question in
this case. The first is 18 U.S.C. § 924(c)(1)(A), which
imposes mandatory consecutive penalties when a
A.
5
defendant uses or carries a firearm “during and in
relation to” a “crime of violence.” An offense qualifies as a
“crime of violence” only if it “has as an element the use,
attempted use, or threatened use of physical force against
the person or property of another.” 18 U.S.C.
§ 924(c)(3)(A); see United States v. Davis, 588 U.S. 445,
470 (2019) (holding § 924(c)(3)(B) unconstitutionally
vague). Determining whether an offense meets that
definition is a categorical inquiry. Delligatti v. United
States, 604 U.S. 423, 426 (2025). Courts look only to the
statutory elements of the underlying offense, not to the
facts of a particular case, and ask whether the offense
necessarily requires the use, attempted use, or
threatened use of violent force. See id.
The second statute is 18 U.S.C. § 111, which
criminalizes “forcibly assault[ing], resist[ing], oppos[ing],
imped[ing], intimidat[ing], or interfer[ing] with” a federal
officer engaged in official duties. 18 U.S.C. § 111(a). The
statute creates three tiers of liability: Simple assault is
punishable by up to one year of imprisonment. Id.
Assaults that involve physical contact with the officer or
the intent to commit another felony carry a penalty of up
to eight years. Id. And § 111(a) violations wherein the
defendant “uses a deadly or dangerous weapon . . . or
inflicts bodily injury” are punishable by up to twenty
years under § 111(b). Id. § 111(b).
2. The Tenth Circuit held below that “[i]t is wellestablished that ‘a voluntary and unconditional guilty plea
waives all non-jurisdictional defenses.’ ” Pet. App. 6a
(citation omitted). But the court did not cite any statute,
federal rule, or decision of this Court articulating that
rule. And although courts have often recited that a guilty
plea waives non-jurisdictional challenges, the scope and
foundations of that proposition are less settled than the
Tenth Circuit’s statement suggests.
6
Historically, the notion that a guilty plea broadly
waives appellate claims developed gradually and without
sustained explanation. Early federal cases generally
stated the proposition without citation or analysis. See
United States v. Bayaud, 16 F. 376, 382 (C.C.S.D.N.Y.
1883); Graffi v. United States, 22 F.2d 593, 593 (7th Cir.
1927); Rice v. United States, 30 F.2d 681, 681 (5th Cir.
1929); Kachnic v. United States, 53 F.2d 312, 315 (9th Cir.
1931). Courts generally did not begin describing guilty
pleas as waiving “non-jurisdictional” challenges until the
turn of the twentieth century, see People v. Carter, 34
N.Y.S. 764, 766 (N.Y. Sup. Ct. 1895); cf. State v. Hinckley,
4 Idaho 490, 491-93 (1895), and federal courts did not
employ that terminology until the late 1930s, see Weir v.
United States, 92 F.2d 634, 635 (7th Cir. 1937); Berg v.
United States, 176 F.2d 122, 125 (9th Cir. 1949); United
States v. Gallagher, 183 F.2d 342, 344 (3d Cir. 1950).
At the same time, courts have long recognized one
limitation on guilty-plea waiver: a plea does not foreclose
the argument that the defendant admitted conduct that is
not criminal. As this Court has acknowledged, see Class,
583 U.S. at 180, by the mid-nineteenth century, “[t]he law
ha[d] been long settled” that a guilty plea does not bar
arguments that the indictment fails to charge a criminal
offense, Fletcher v. State, 12 Ark. 169, 170 (1851) (citing 1
Joseph Chitty, A Practical Treatise on the Criminal Law
431, 662-63 (New York, Banks, Gould & Co., 5th Am. ed.
1847)); e.g., Crow v. State, 6 Tex. 334, 334 (1851);
Commonwealth v. Hinds, 101 Mass. 209, 210 (1869);
Arbintrode v. State, 67 Ind. 267, 268 (1879); Boody v.
People, 43 Mich. 34, 35-36 (1880); State v. Watson, 41 La.
Ann. 598, 598 (1889); State v. Levy, 119 Mo. 434, 436
(1894); Grossman v. City of Oakland, 30 Or. 478, 485
(1895); Moore v. State, 53 Neb. 831, 835 (1898); see also
Republic v. Ah Cheon, 10 Haw. 469, 470 (1896); People v.
Andreu, 23 P.R. 698, 699-700 (1916).
7
After Congress authorized criminal appeals, federal
courts widely adopted the same principle. See Class, 583
U.S. at 180 (“Decisions of federal and state courts
throughout the 19th and 20th centuries reflect a similar
view of the nature of a guilty plea.”); e.g., Hocking Valley
Ry. Co. v. United States, 210 F. 735, 738-39 (6th Cir. 1914);
Oesting v. United States, 234 F. 304, 306 (9th Cir. 1916);
Kellerman v. United States, 295 F. 796, 798 (3d Cir. 1924);
Blain v. United States, 22 F.2d 393, 394 (8th Cir. 1927);
Graffi, 22 F.2d at 593; Rice, 30 F.2d at 681; Kachnic, 53
F.2d at 315; Roberto v. United States, 60 F.2d 774, 775 (7th
Cir. 1932) (per curiam); Weatherby v. United States, 150
F.2d 465, 466 (10th Cir. 1945); see also Spirou v. United
States, 24 F.2d 796, 797 (2d Cir. 1928) (per curiam).
Hocking Valley is illustrative. There, the Sixth
Circuit held that a plea of nolo contendere did not waive
the argument “that the indictment was fatally
insufficient” because the charged conduct did not violate
the Interstate Commerce Act. See 210 F. at 737-38. “If the
[defendant] [wa]s right,” the court explained, “its plea
could not be taken as a final admission of the offense,
because no offense was charged; it could not be guilty of a
crime, because no crime had been committed.” Id. at 738.
The court described its conclusion as following from “the
settled rule that, even after explicit plea of guilty,
defendant may urge, in the reviewing court, such an
objection.” Id.; see Class, 583 U.S. at 180 (citing Hocking
Valley, 210 F. at 738).
Consistent with that understanding, courts regularly
entertained arguments that the facts admitted by a guilty
plea did not satisfy the statutory elements of the offense.
E.g., Oesting, 234 F. at 306-07; Blain, 22 F.2d at 394-95;
Graffi, 22 F.2d at 593; Spirou, 24 F.2d at 797. This Court
likewise recognized that pleas of nolo contendere, “like
pleas of guilty[,] may be reviewed to determine whether a
crime is stated by the indictment.” United Bhd. of
8
Carpenters & Joiners of Am. v. United States, 330 U.S.
395, 412 n.26 (1947) (emphasis added) (citing Hocking
Valley, 210 F. at 738).
Beginning in the late 1930s, some federal courts
recast this rule in “jurisdictional” terms. E.g., Weir, 92
F.2d at 635 (“[Guilty] pleas . . . waive[ ] all defects not
jurisdictional.”). Although this Court later clarified that
indictment defects do not deprive federal courts of
subject-matter jurisdiction, United States v. Cotton, 535
U.S. 625, 629-30 (2002), it has not rejected the rule that a
guilty plea does not waive the claim that the indictment is
fatally insufficient in failing to charge criminal conduct,
see United Bhd., 330 U.S. at 412 n.26. To the contrary, as
Class explained, Haynes v. United States, 390 U.S. 85
(1968), Blackledge v. Perry, 417 U.S. 21, and Menna v.
New York, 423 U.S. 61, all “reflect an understanding of the
nature of guilty pleas which, in broad outline, stretches
back nearly 150 years.” 583 U.S. at 180. The Court has
decided cases “against this background,” id., and Class
suggested that this doctrinal area remains open to further
clarification, see 15C Charles A. Wright et al., Federal
Practice and Procedure § 3918.7 (2d ed. 2025).
That historical background provides context for the
treatment of guilty pleas, but a different body of law
governs the waiver of appellate rights. Waiver of the right
to appeal is one of “the most common provisions in plea
agreements in federal criminal cases.” Quin M. Sorenson,
Appeal Rights Waivers: A Constitutionally Dubious
Bargain, Fed. Law., Oct.-Nov. 2018, at 33; see U.S. Sent’g
Comm’n, 2024 Annual Report 14 (“In fiscal year 2024,
most sentenced individuals pleaded guilty (97%).”).
“ ‘Waiver’ has been well said to be ‘a troublesome term in
the law.’ ” Henry J. Friendly, Is Innocence Irrelevant?
Collateral Attack on Criminal Judgments, 38 U. Chi. L.
Rev. 142, 159 (1970) (citation omitted).
9
“These provisions, among the most ubiquitous in plea
agreements, are also the most constitutionally dubious.”
Sorenson, supra, at 33. Inclusion of “a sentencing appeal
waiver in a plea agreement to bar an appeal by the
defendant does not require the government to waive its
right to appeal an adverse sentencing ruling.” U.S. Dep’t
of Just., Criminal Resource Manual § 626 (2026),
https://bit.ly/4kdXi80. The waiver of a defendant’s right to
appeal, as with the waiver of any other constitutional or
statutory right, must be voluntarily and knowingly made.
See Garza v. Idaho, 586 U.S. 232, 239 (2019); Jefri Wood,
Fed. Jud. Ctr., Guideline Sentencing: An Outline of
Appellate Case Law on Selected Issues 423 (2000) (waiver
“must be knowing and voluntary”).
Where a defendant waives his right to appeal without
a plea agreement, the defendant may challenge the
conviction or sentence by way of a collateral attack. “[T]he
original sphere for collateral attack on a conviction was
where the tribunal lacked jurisdiction either in the usual
sense or because the statute under which the defendant
had been prosecuted was unconstitutional or because the
sentence was one the court could not lawfully impose.”
Friendly, supra, at 151 (emphasis added) (citations
omitted); see Ex parte Lange, 85 U.S. (18 Wall.) 163, 178
(1874) (explaining that defendant’s conviction may be
overturned where sentence is unlawfully imposed).
B. Factual Background
1. In August 2020, law-enforcement officers in
Kansas City, Kansas, were investigating a shooting
incident when a second shooting occurred nearby.
Pet. App. 2a. One federal officer and one civilian sustained
hand injuries in the second shooting. Pet. App. 2a. Several
individuals, including petitioner, were indicted in
connection with the incident. Pet. App. 3a.
The June 2, 2021, indictment charged petitioner with
committing two crimes. Pet. App. 3a. Count One alleged
10
that he forcibly assaulted federal officers, in violation of
18 U.S.C. § 111(a) and (b). Pet. App. 3a. Count Two
charged him with using and discharging a firearm during
and in relation to that alleged violation of § 111(b), in
violation of 18 U.S.C. § 924(c)(1)(A)(iii). Pet. App. 3a. The
§ 111(b) charge in Count One was the predicate “crime of
violence” supporting the § 924(c) charge in Count Two.
See Pet. App. 3a.
Before entering any plea, petitioner moved to dismiss
Count Two. Pet. App. 3a. He argued that § 111(b) is not
categorically a crime of violence under § 924(c).
Pet. App. 3a. Petitioner relied on this Court’s intervening
decision in Borden v. United States, 593 U.S. 420 (2021),
which clarified that offenses that can be committed with a
mens rea of recklessness do not qualify as “crime[s] of
violence” under § 924(c). See Pet. App. 3a. Petitioner
contended that a violation of § 111(b) does not necessarily
require the intentional use, attempted use, or threatened
use of violent physical force against another person, and
that the statute can be violated in ways that fall short of
the elements clause. See Pet. App. 3a. Because § 924(c)
requires a categorical match between its definition of a
“crime of violence” and the predicate offense, petitioner
maintained that Count Two must be dismissed as a matter
of law. See Pet. App. 3a.
The district court denied the motion. Pet. App. 3a. It
relied primarily on pre-Borden circuit precedent that
treated § 111(b) as a crime of violence. Pet. App. 3a. The
district court concluded that existing Tenth Circuit
authority compelled the view that § 111(b) necessarily
involves the intentional use of violent force. Pet. App. 3a.
2. Once the district court denied his motion to
dismiss Count Two, petitioner faced the familiar dilemma
of a defendant whose purely legal challenge has been
rejected before trial: he could proceed to trial solely to
preserve the legal issue for appeal, or he could plead
11
guilty while maintaining that the admitted facts did not
constitute the predicate offense as a matter of law.
Petitioner chose the latter course. He entered an
unconditional guilty plea to both counts, without a plea
agreement and without waiving the right to seek review
of the district court’s legal ruling. See Pet. App. 39a-49a.
In doing so, he accepted the factual allegations in the
indictment, but he did not concede that those facts
satisfied the statutory definition of a crime of violence
under § 924(c).
The district court entered judgment and imposed a
sentence of 156 months of imprisonment. Pet. App. 6a.
Petitioner timely appealed, presenting the same legal
argument he advanced below: that the conduct described
in Count One did not categorically constitute a crime of
violence and therefore could not support a conviction
under § 924(c). Pet. App. 6a.
3. The court of appeals affirmed petitioner’s
conviction in a published decision, resolving the case
solely on the ground that his unconditional guilty plea
implicitly waived review of the legal issue petitioner
thought he had preserved. Pet. App. 6a-9a. The panel
acknowledged that petitioner argued before the district
court that assault on a federal officer under 18 U.S.C.
§ 111(b) is not categorically a crime of violence and
therefore cannot serve as the predicate offense under
§ 924(c). Pet. App. 3a. It further recognized that
petitioner’s claim was purely legal, accepted the facts
alleged in the indictment, and required no factual
development. See Pet. App. 6a-7a. Nonetheless, the court
held that a voluntary, unconditional guilty plea waives all
non-jurisdictional challenges except for a narrow class of
constitutional claims involving vindictive prosecution,
double jeopardy apparent on the face of the indictment, or
the facial validity of the statute of conviction. Pet. App. 7a.
Because petitioner’s statutory argument did not fall
12
within those limited categories, the panel concluded that
his claim was waived and therefore not subject to
appellate review. Pet. App. 7a-9a.
In adopting that rule, the Tenth Circuit expressly
aligned itself with decisions of the Fourth and Seventh
Circuits holding that an unconditional guilty plea
extinguishes the right to argue on appeal that the
admitted conduct does not satisfy the statutory elements
of the offense of conviction. Pet. App. 8a (citing
Grzegorczyk v. United States, 997 F.3d 743 (7th Cir.
2021); and United States v. Pittman, 125 F.4th 527 (4th
Cir. 2025)). The Court did not cite United States v. St.
Hubert, 909 F.3d 335, which all parties agreed was in
direct conflict with those circuits. Applying its implicitwaiver rule, the panel did not reach the merits of whether
§ 111(b) categorically qualifies as a crime of violence and
instead resolved the appeal entirely on waiver grounds.
Petitioner sought panel rehearing and rehearing en
banc, explaining that the First, Third, Fifth, Ninth, and
Eleventh Circuits—and other Tenth Circuit decisions—
allow defendants who plead guilty to pursue precisely this
type of purely legal argument on appeal. The court of
appeals denied rehearing without opinion. Pet. App. 13a.
REASONS FOR GRANTING THE PETITION
I.
THERE IS A CLEAR AND INTRACTABLE CONFLICT
OVER A SIGNIFICANT QUESTION
The decision below further cements an untenable rift
among the courts of appeals. In the Second, Fourth,
Seventh, Eighth, D.C., and Tenth Circuits, a defendant
who enters an unconditional plea cannot argue on appeal
that the conduct to which he pleaded guilty does not
constitute an offense under the statute of conviction. But
he can make such an argument in the First, Third, Fifth,
Ninth, and Eleventh Circuits. This nearly even division
among the courts of appeals over the consequences of an
13
unconditional guilty plea is stark, entrenched, and
acknowledged by courts and commentators alike. See, e.g.,
5 Wayne R. LaFave et al., Criminal Procedure § 21.6(a)
(4th ed. 2025) (referencing the split).
In the absence of clarification from this Court, the
courts of appeals have taken varying approaches to reach
their respective conclusions. The result, as one
commentator described, is “inconsistent development of
the law in the federal circuits.” Nikolaus Albright, Note,
Class v. United States: An Imperfect Application of the
Menna-Blackledge Doctrine to Post-Guilty Plea
Constitutional Claims, 78 Md. L. Rev. 382, 386 (2019).
This Court’s definitive guidance is urgently needed to
restore certainty and uniformity to federal law.
A.
The First, Third, Fifth, Ninth, and Eleventh
Circuits Allow Purely Legal Challenges After
Unconditional Guilty Pleas
In direct contrast to the decision below, in the First,
Third, Fifth, Ninth, and Eleventh Circuits, a defendant’s
guilty plea does not bar him from arguing on appeal that
the conduct to which he pleaded does not constitute an
offense under the statute of conviction.
In United States v. Rosa-Ortiz, the First Circuit
explained that a “[defendant’s] guilty plea does not
preclude him from arguing on appeal that the statute of
conviction does not actually proscribe the conduct
charged in the indictment.” 348 F.3d 33, 36 (1st Cir. 2003).
Similarly, the Ninth Circuit in United States v. Brown
held that a defendant’s unconditional guilty plea did not
bear on the court’s ability to consider the defendant’s
claim that his factual circumstances did not satisfy the
statute of conviction. 875 F.3d 1235, 1238-39 (9th Cir.
2017).
The Eleventh Circuit reached the same conclusion in
United States v. St. Hubert, where it held that a defendant
14
who pleaded guilty had not waived his challenge to his 18
U.S.C. § 924(c) conviction because “the indictment failed
to charge an offense against the laws of the United
States.” 909 F.3d at 344. Echoing a similar rule, the Fifth
Circuit in United States v. Jones reasserted its earlier
pronouncement that “[a] guilty plea does not waive the
right of a defendant to appeal a district court’s finding of
a factual basis for the plea on the ground that the facts set
forth in the record do not constitute a federal crime.” 75
F.4th 502, 508 (5th Cir. 2023) (quoting United States v.
Reasor, 418 F.3d 466, 470 (5th Cir. 2005)).
Joining this side of the split, the Third Circuit in
United States v. Hedaithy held that a defendant who took
an unconditional guilty plea “must be permitted . . . to
challenge for the first time on appeal the sufficiency of his
superseding indictment” on the ground that “the facts
alleged . . . do not constitute” the charged crime. 392 F.3d
580, 589 (3d Cir. 2004). Later, in United States v. Porter,
the Third Circuit reaffirmed that, post-Class, “a claim
need not attack subject matter jurisdiction to survive an
unconditional guilty plea.” 933 F.3d 226, 229 (3d Cir.
2019). The Third Circuit clarified that a claim survives an
unconditional guilty plea so long as it is constitutionally
relevant to the defendant’s conviction. Id. In so
concluding, the Third Circuit “join[ed]” the First and
Ninth Circuits. Id.
B. The Second, Fourth, Seventh, D.C., and Now the
Tenth Circuit Prohibit Purely Legal Challenges
After an Unconditional Guilty Plea
A defendant charged in the Second, Fourth, Seventh,
Eighth, D.C., and, now, the Tenth Circuit faces
diametrically different consequences for pleading guilty
than does the same defendant charged in the First, Third,
Fifth, Ninth, and Eleventh Circuits. The Second, Fourth,
Seventh, Eighth, D.C., and Tenth Circuits bar defendants
who unconditionally plead guilty from arguing on appeal
15
that their admitted conduct does not constitute the
charged offense.
In the Second, Fourth, Seventh, and Tenth Circuits,
an unconditional plea categorically waives the claim that
the indictment charged a non-offense. Most recently, in
the decision below, the Tenth Circuit held that an
unconditional guilty plea “waives” a defendant’s right to
argue on appeal that his admitted conduct did not
constitute an offense under the statute of conviction.
Pet. App. 6a-9a. In reaching that conclusion, the Tenth
Circuit expressed agreement with the Seventh Circuit in
Grzegorcyzk v. United States, 997 F.3d 743, and the
Fourth Circuit in United States v. Pittman, 125 F.4th 527.
Pet. App. 8a. The Seventh Circuit in Grzegorcyzk held
that “an unconditional plea of guilty is sufficient to waive
a defendant’s right to contest the proper interpretation of
the statute of conviction.” 997 F.3d at 748 (emphasis
omitted). And the Fourth Circuit in Pittman held that a
defendant who unconditionally pleads guilty “waives any
argument that the statute of conviction does not cover
that defendant’s conduct.” 125 F.4th at 533.
The Tenth Circuit’s rule also aligns with that of
Second Circuit, which imposes the same categorical bar.
The Second Circuit held in United States v. Rubin, 743
F.3d 31 (2d Cir. 2014)—the reasoning of which it later
reaffirmed in United States v. Aquart, 92 F.4th 77 (2d Cir.
2024)—that a defendant’s “unconditional guilty plea . . .
precludes his argument on appeal that he was convicted
of a . . . ‘non-offense’ under the [statute].” Rubin, 743 F.3d
at 40.
In the D.C. and Eighth Circuits, unconditional guilty
pleas yield the same consequences for defendants, albeit
with room for one narrow exception. Like the Second,
Fourth, Seventh, and Tenth Circuits, the D.C. Circuit in
United States v. Delgado-Garcia held that, by pleading
unconditionally, defendants waived the argument that the
16
statute of conviction did not apply to their conduct. 374
F.3d 1337, 1340 (D.C. Cir. 2004). But the D.C. Circuit
acknowledged a potential exception had the defendants’
guilty pleas not been “knowing and intelligent.” Id. at
1341.
Similarly, the Eighth Circuit held in United States v.
Beck that a defendant’s unconditional guilty plea waived
his argument that his conduct did not satisfy the statute
of conviction. 250 F.3d 1163, 1165-67 (8th Cir. 2001).
Later, in United States v. Frook, the Eighth Circuit did
not overrule Beck, but conceded that a defendant who
pleaded guilty unconditionally could subsequently
challenge the “knowing and voluntary” nature of his plea
“[i]f a district court accepts a guilty plea based on a set of
facts that plainly and obviously does not constitute a
federal offense.” 616 F.3d 773, 775-76 (8th Cir. 2010).4
Critically, four out of the six circuits on this side of the
divide, viz., the Tenth (the decision below), Fourth
(Pittman), Seventh (Grzegorcyzk), and Second (Aquart)
Circuits, have weighed in on the question presented after
this Court issued its opinion in Class. These circuits’
conclusions directly oppose those of three other circuits,
also formulated post-Class: the Third (St. Hubert), Fifth
(Jones), and Eleventh (Porter) Circuits. These recent
diverging decisions reflect the maturity and intractability
of the circuit split, as well as the scant likelihood of its
resolution absent this Court’s intervention.
The D.C. and Eighth Circuits’ potential exception for pleas that
are not knowing and voluntary does not protect defendants like petitioner, who properly raised his legal objection before the district
court—demonstrating his knowledge of the legal insufficiency of the
charge. The rule thus penalizes most harshly those defendants who
do the most to try to preserve their rights, on the remarkable fiction
that a guilty plea constitutes an implied “waiver” of their right to
appeal.
4
17
C.
The Circuit Split Is Openly Acknowledged
This intractable division among the circuits is openly
acknowledged by the courts of appeals themselves, as well
as by commentators.
1. In United States v. Cheney, the Eighth Circuit
recognized that “[t]he law is unsettled about whether a
defendant can appeal the adequacy of a factual basis after
entering an unconditional guilty plea.” 571 F.3d 764, 768
(8th Cir. 2009). The Eighth Circuit characterized the
existing divide as between the Seventh, Fifth, and First
Circuits and the Eleventh, Fourth, and Sixth Circuits. Id.;
see also United States v. Thomas, 615 F.3d 895, 898 (8th
Cir. 2010) (also noting the split). The Seventh Circuit has
also recognized that “[t]he circuits are split on the proper
interpretation of Cotton.” United States v. Muresanu, 951
F.3d 833, 838 (7th Cir. 2020) (acknowledging the split
between the Eleventh Circuit and the Tenth and Fifth
Circuits as to whether “the rule announced in Cotton does
not apply if an indictment fails to allege any federal crime
at all”); see also United States v. Lowe, 512 F. App’x 628,
630 (7th Cir. 2013).
The conflict between the circuits has additionally
been referenced by the Second Circuit. In Rubin, the
Second Circuit joined the Tenth, Sixth, and D.C. Circuits’
interpretations that “the failure to state an offense under
the charged statute” does not “deprive[ ] a district court
of jurisdiction.” 743 F.3d at 37-38. And in Aquart, the
Second Circuit expressly split with the Eleventh Circuit’s
position that “a district court lacks jurisdiction when an
indictment alleges only a non-offense.” 92 F.4th at 90
(quoting United States v. Peter, 310 F.3d 709, 714-15 (11th
Cir. 2002)).
The Tenth and Eleventh Circuits have openly
acknowledged their mutual disagreement. The Tenth
Circuit in United States v. De Vaughn extensively
criticized the Eleventh Circuit’s application of Cotton to
18
“indictments that fail to charge an offense.” 694 F.3d 1141,
1147-49 (10th Cir. 2012); see also United States v. Doe, 698
F.3d 1284, 1290 n.2 (10th Cir. 2012) (referencing the same
disagreement). And the Eleventh Circuit in United States
v. McIntosh recognized that its interpretation of Cotton
contradicted that of the Tenth Circuit in De Vaughn. See
704 F.3d 894, 902 (11th Cir. 2013). The government in its
briefing below discussed the Tenth Circuit’s previous
express rejection of the Eleventh Circuit’s rule. U.S. Br.
at 22 n.6, United States v. Barnes, 141 F.4th 1156 (No. 243062).
2. Commentators have similarly identified and
analyzed this circuit divide. See, e.g., 5 LaFave et al.,
supra § 21.6(a) (observing that the “ ‘jurisdictional’
approach,” whereby whether a claim “survive[s] a guilty
plea depends on whether [it is] ‘jurisdictional,’ . . . has
been most commonly used in holding a defendant can
question whether the charge states an offense even after
his guilty plea,” but “the Supreme Court’s decision in
United States v. Cotton has led some courts to abandon
earlier rulings to that effect”); 15C Wright et al., supra
§ 3918.7 (noting “the uncertainty in lower courts whether
a guilty pleas waives an argument that the indictment or
information failed to state an offense”); William T. Stone,
Jr., Note, Waiving Good-Bye to Inconsistency: Factual
Basis Challenges to Guilty Pleas in Federal Courts, 45
Ga. L. Rev. 311, 316-24 (2010) (surveying at length “the
circuit split” on whether “factual basis challenges” are
“waived by an unconditional guilty plea”); Albright,
supra, at 386, 394-400 (discussing the “federal circuit
split” on “whether a guilty plea bars a certain claim on
appeal” and blaming the split on “the inconsistent
development of the law in the federal circuits in applying”
Blackledge and Menna); Steven Schmidt, Note, The Need
for Review: Allowing Defendants to Appeal the Factual
Basis of a Conviction After Pleading Guilty, 95 Minn. L.
19
Rev. 284, 285-86 (2010) (describing the “split among the
federal courts” regarding “the right of a criminal
defendant” who “entered a guilty plea” to contest “the
adequacy of the factual basis of his conviction”); Kristen
N. Sinisi, Comment, The Cheney Dilemma: Should a
Defendant Be Allowed to Appeal the Factual Basis of His
Conviction After Entering an Unconditional Guilty
Plea?, 59 Cath. U. L. Rev. 1171, 1173 (2010) (examining
“the circuit split concerning whether the entrance of an
unconditional guilty plea waives a defendant’s right to
appeal the adequacy of the factual basis for conviction”).
II.
THE QUESTION PRESENTED IS IMPORTANT AND
WARRANTS REVIEW IN THIS CASE
A. This is precisely the type of case that warrants
certiorari under Rule 10(a): it raises a widely
acknowledged, deeply entrenched conflict among the
courts of appeals on a fundamental federal question,
producing a geographic patchwork on an issue of
exceptional importance to every criminal defendant in the
federal criminal justice system.
1. The practical stakes are enormous. The outcome of
every single criminal case in the federal system is
dictated, at least in part, by the availability of appellate
review. The conclusion that by the very act of pleading
guilty defendants waive virtually any right they have to
appeal would send a shockwave through that system. As
countless courts have recognized, criminal defendants
benefit from appeal waivers in negotiated pleas because
by giving up the appeal they get something in return. But
in the Tenth Circuit, and several others, appeal waivers
are utterly superfluous—the guilty plea itself does all the
work the appeal waiver was supposed to do. This Court is
scheduled to consider this Term the scope and
enforceability of appeal waivers. See Hunter v. United
States, cert. granted, No. 24-1063 (oral argument
scheduled for Mar. 3, 2026). But under the Tenth Circuit’s
20
rule it turns out that whole case is a big waste of
everyone’s time because the guilty plea bars the appeal
anyway.
And it goes without saying that the rules that govern
plea negotiations are the most important rules of criminal
procedure because the “reality” is “that criminal justice
today is for the most part a system of pleas, not a system
of trials.” Lafler v. Cooper, 566 U.S. 156, 170 (2012).
Approximately 97% of criminal cases end in guilty pleas.
U.S. Sent’g Comm’n, supra, at 14. The rules that govern
appeals from those pleas are every bit as important—if
not more important—than the rules that govern criminal
trials. If pleading guilty waives the right to appeal, then
innocent criminal defendants will be forced to choose:
plead guilty and accept forever the trial judge’s
misinterpretation of federal law, or go to trial to preserve
the appeal rights at the risk of suffering the “trial”
penalty and later losing the appeal.5
The practical difficulties do not stop there. Courts
have long recognized that an unconditional plea does not
bar a later habeas petition alleging actual innocence. See,
e.g., Bousley v. United States, 523 U.S. 614, 622 (1998)
(defendants can bring an actual innocence claim even if
they do not raise the claim on direct appeal); United
States v. Andis, 333 F.3d 886, 891 (8th Cir. 2003) (allowing
Candace McCoy, Bargaining in the Shadow of the Hammer: The
Trial Penalty in the USA, in The Jury Trial in Criminal Justice
23, 25 (Douglas D. Koski ed., 2003); see also Nancy J. King et al.,
When Process Affects Punishment: Differences in Sentences After
Guilty Plea, Bench Trial, and Jury Trial in Five Guidelines States,
105 Colum. L. Rev. 959, 992 (2005) (average trial penalty ranged
from 13% to 461% depending on the state and the offense); Jackie
Gardina, Compromising Liberty: A Structural Critique of the Sentencing Guidelines, 38 U. Mich. J.L. Reform 345, 347-48 (2005) (average sentence for federal defendants who go to trial is three times
higher than the sentence for defendants who plead to similar
charges).
5
21
a habeas petitioner to bring an actual innocence claim,
overcoming an otherwise valid collateral attack waiver);
Ludwig v. United States, 162 F.3d 456, 458 (6th Cir. 1998)
(contemplating that a habeas petitioner could attack his
conviction by showing actual innocence, notwithstanding
his unconditional guilty plea). It cannot possibly be the
case that federal law bars a criminal defendant from
taking an appeal on an issue but permits a habeas petition
on the exact same issue. That turns habeas on its head.
2. The legal significance of the Tenth Circuit’s ruling
is no less profound. The Tenth Circuit’s rule is deeply
flawed. The doctrine on which it relies has no deep roots
in American law—in fact, it is at odds with history and
tradition. E.g., Hinds, 101 Mass. at 210 (explaining that
the defendant is entitled to be discharged after pleading
guilty if the facts alleged and admitted by the plea do not
constitute a crime).
The fiction on which it relies strains credulity. There
is no sound reason to think that a criminal defendant
intends, merely by pleading guilty, to “implicitly waive[ ]”
his right to appeal—especially where his claim on appeal
is that his conduct was not criminal. 15C Wright et al.,
supra § 3918.7 (“The theory that a plea waives many
issues for appeal is a theory of waiver, not one of appeal
jurisdiction.”). If this waiver were really a result of
pleading guilty, one would have thought it would be made
explicit, not left to implication. The Federal Rule of
Criminal Procedure 11 colloquy exists explicitly to inform
defendants of the important rights they are relinquishing
by pleading guilty. Waiving the right to appeal is
conspicuously absent from those colloquies. The entire
justification for the Tenth Circuit’s rule depends on a
fictitious consent to waive one’s right to appeal even
where the defendant vigorously contested the proposition
that the facts alleged in the indictment even constitute the
crime charged. It demands a suspension of disbelief that
22
would make a Hollywood screenwriter blush. It also
guarantees a flood of plea-withdrawal motions, Rule 11
colloquy-related litigation, and postconviction ineffectiveassistance-of-counsel claims in the lower courts.
The waiver-by-plea rule is not just a pernicious
fiction, it is wasteful and nonsensical. It forces criminal
defendants to refuse to plead guilty—even when they
have no hope of winning at trial—just to preserve the
purely legal claim that the conduct alleged in the
indictment is not a crime at all. Forcing criminal
defendants to enter makeweight “not guilty” pleas and
endure criminal trials merely to preserve already-raised,
purely legal issues for appeal is a colossal waste of party
and judicial resources and frankly make no sense.
This is not a problem that “conditional” guilty pleas
can solve. Many defendants cannot escape this choice
through a conditional plea for the simple reason that the
government (and the court) must consent to any
condition. Cases abound in which the government refused
to grant consent. See, e.g., United States v. RiveraMorales, 961 F.3d 1, 17 (1st Cir. 2020) (“[T]he government
. . . spurned [the defendant’s] offer of a conditional plea,”
which “the government was under no obligation to
accept”); United States v. Najera, 915 F.3d 997, 1000 (5th
Cir. 2019) (“For reasons unknown, the Government
refused to accept a conditional plea.”); In re Gallaher, 548
F.3d 713, 716-17 (9th Cir. 2008) (“Rule 11(a)(2) does not
place any per se restrictions on how a court may exercise
its discretion.”). And under the Tenth Circuit’s rule, the
government has little incentive to consent to conditional
pleas, given that unconditional pleas insulate legal errors
from appellate review.
This Court’s intervention is necessary to provide
much-needed clarity to the law, benefitting the pleabargaining process by ensuring that defendants,
23
prosecutors, and trial courts alike are correctly informed
of the consequences of unconditional guilty pleas.
B. This case is an optimal vehicle to resolve the
question presented. The issue is a pure question of law, it
was extensively briefed before the Tenth Circuit, and the
Tenth Circuit’s ruling on this issue was outcomedeterminative. The United States conceded that the
Tenth Circuit would be further entrenching the split by
ruling against petitioner on this basis in its briefing below.
Given the depth of this circuit conflict, its widespread
recognition, and its longstanding duration, there is no
reason to believe further percolation would aid the
Court’s review.
Had petitioner been charged in the First, Third,
Fifth, Ninth, or Eleventh Circuits, he could have appealed
the district court’s determination that his conduct
constituted the offense alleged in the indictment. But
because he was charged in Kansas, instead of Texas or
Montana, his right to appeal was deemed implicitly
waived. This clean presentation is the perfect backdrop
for a definitive resolution of this important and recurring
issue by this Court. Only this Court’s review can resolve
this circuit split and restore uniformity among the
circuits.
CONCLUSION
The petition for a writ of certiorari should be granted.
24
Respectfully submitted.
NICOLE MASIELLO
DANA KHABBAZ
ARNOLD & PORTER
KAYE SCHOLER LLP
250 West 55th Street,
New York, NY 10019
(212) 836-8000
ANDREW T. TUTT
Counsel of Record
DANA KAGAN MCGINLEY
SPENCER J. FABER
CONNOR MORGAN
ARNOLD & PORTER
KAYE SCHOLER LLP
601 Massachusetts Ave., NW
Washington, DC 20001
(202) 942-5000
andrew.tutt@arnoldporter.com
KENESHA STARLING
DUNCAN
ARNOLD & PORTER
KAYE SCHOLER LLP
700 Louisiana St., Ste. 4000 EDWARD K. FEHLIG, JR.
FEHLIG LAW FIRM, LLC
Houston, TX 77002
(713) 576-2400
3002 S. Jefferson Ave., Ste. 207
St. Louis, MO 63118
(314) 359-5690
FEBRUARY 2026
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