16-4107(L)

Cook v. United States

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

At a stated term of the United States Court of Appeals for the Second Circuit, 

held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the 

City of New York, on the 9th day of August, two thousand twenty-four. 

Present: 

DEBRA ANN LIVINGSTON, 

 Chief Judge,

RAYMOND J. LOHIER, JR., 

RICHARD J. SULLIVAN, 

JOSEPH F. BIANCO,

MICHAEL H. PARK, 

WILLIAM J. NARDINI, 

STEVEN J. MENASHI, 

EUNICE C. LEE, 

BETH ROBINSON, 

MYRNA PÉREZ, 

ALISON J. NATHAN,

SARAH A. L. MERRIAM, 

MARIA ARAÚJO KAHN,

 Circuit Judges. 

_____________________________________

Docket Nos. 16-4107(L), 19-3773(Con), 19-3790(Con), 19-3807(Con), 19-3813(Con), 

19-3899(Con)

____________________________________

DEREK COOK, CHAD EDWARDS, BRIAN LATULIPE, ANSON EDWARDS, BRYAN HERNE,

KAIENTANORON L. SWAMP, 

Petitioners-Appellants,

v.
UNITED STATES OF AMERICA

Respondent-Appellee. 

For Petitioners-Appellants: James P. Egan, Assistant Federal Public 

Defender, Office of the Federal Public 

Defender, Syracuse, NY.

For Respondent-Appellee: Michael F. Perry, Carina H. Schoenberger, 

Assistant United States Attorneys, for Carla 

B. Freedman, United States Attorney for the 

Northern District of New York, Syracuse, 

NY. 

Following disposition of the appeal in this case on October 16, 2023, an 

active judge of the Court requested a poll on whether to rehear the case en banc. A 

poll having been conducted and there being no majority favoring en banc review, 

rehearing en banc is hereby DENIED. 

Raymond J. Lohier, Jr., Circuit Judge, joined by Myrna Pérez, Circuit Judge, 

concurs by opinion in the denial of rehearing en banc. 

Richard J. Sullivan, Circuit Judge, joined by Debra Ann Livingston, Chief 

Judge, and Joseph F. Bianco, Michael H. Park, William J. Nardini, and Steven J. 

Menashi, Circuit Judges, concurs by opinion in the denial of rehearing en banc. 

Alison J. Nathan, Circuit Judge, concurs by opinion in the denial of rehearing 

en banc. 

Beth Robinson, Circuit Judge, joined by Eunice C. Lee and Sarah A. L. 

Merriam, Circuit Judges, dissents by opinion from the denial of rehearing en banc. 

 FOR THE COURT:

 Catherine O’Hagan Wolfe, Clerk
1 

RAYMOND J. LOHIER, JR., Circuit Judge, joined by MYRNA PÉREZ, Circuit Judge, 

concurring in the order denying rehearing in banc: 

During the in banc poll, the key question before us was whether a 

collateral-attack waiver in a plea agreement is enforceable even if it results in a 

complete miscarriage of justice. For reasons I explain below, we should wait for 

a better case to resolve this important question. These consolidated cases present 

a set of complicating side-issues that will only obscure our answer. 

First, there is the preliminary issue of mootness. The Government and the 

petitioners agree that the cases are neither constitutionally nor statutorily moot 

because of the continuing collateral consequences that flow from the petitioners’

§ 924(c) convictions and the fact that the petitioners were in custody at the time 

they filed their petitions. See Nowakowski v. New York, 835 F.3d 210, 226 (2d Cir. 

2016) (Article III mootness); Carafas v. LaVallee, 391 U.S. 234, 238 (1968) (statutory 

“in custody” requirement). I think the parties have it right, but proceeding in 

banc would have required that we grapple with this jurisdictional issue. 

Second, the panel’s decision recognizes miscarriage-of-justice exceptions to 

appeal and collateral attack waivers exist in certain circumstances. See Cook v. 

United States, 84 F.4th 118, 125 n.4 (2d Cir. 2023). I understand that this is cold
2 

comfort to the petitioners, but the broader principles that recognize the exception 

in appropriate cases have already prevailed. 

A thorny subsidiary issue in these cases introduces another complicating 

factor that would persist even if we were to say more about the exception. It is 

that the conduct to which the petitioners admitted would also support a 

conviction for drug trafficking under 21 U.S.C. §§ 846 and 841. Whether an 

alternative, valid conviction can support an appeal waiver and cure what might

otherwise qualify as a miscarriage of justice under the federal habeas statute, 28 

U.S.C. § 2255, is a question that will not exist in any future case where the 

invalidated conviction stands more or less alone as the target of the petitioner’s 

attack. 

Third, the panel decision says nothing about the impact of United States v. 

Riggi, in which we emphasized that “[a] violation of a fundamental right 

warrants voiding an appeal waiver,” and that enforcing certain appellate waivers 

“may irreparably discredit the federal courts.” 649 F.3d 143, 147‒48 (2d Cir. 

2011) (quotation marks omitted); see also United States v. Lajeunesse, 85 F.4th 679, 

692–94 (2d Cir. 2023). The panel’s decision does not rule out applying Riggi in 

future variations of the case before us. 
3 

Finally, I appreciate the views of some of my colleagues that the panel’s 

approach to the collateral attack waiver in this case might be viewed as in 

conflict with Bousley v. United States, 523 U.S. 614, 618‒19 (1998). But the 

argument based on Bousley was never raised by the parties before the District 

Court or to the panel (not even in the petitioners’ petition for panel rehearing). 

This is not a surprise, as the petitioners’ argument has always been that their 

collateral attack waivers were not knowing and voluntary. They have never 

argued that their underlying pleas were not knowing and voluntary such that 

Bousley might apply. We should be wary of plucking an issue for in banc review 

that was not raised by any party at any time. See United States v. Sineneng-Smith, 

590 U.S. 371, 375‒76 (2020).

Let me end with some words of assurance. The question that my 

dissenting colleagues want answered today will almost certainly recur in the 

right case in due time. When that happens, we will be guided by precedent in 

Bousley v. United States, 523 U.S. 614 (1998), United States v. Riggi, 649 F.3d 143 (2d 

Cir. 2011), United States v. Balde, 943 F.3d 73 (2d Cir. 2019), and United States v. 

Lajeunesse, 85 F.4th 679 (2d Cir. 2023). And this Court might well consider the 

Fourth Circuit’s approach in United States v. McKinney, 60 F.4th 188, 192‒93 (4th 
4 

Cir. 2023), which applied a miscarriage-of-justice exception to invalidate an 

appeal waiver. 

For these reasons I must respectfully concur in the denial of in banc 

review. 
RICHARD J. SULLIVAN, Circuit Judge, joined by DEBRA ANN LIVINGSTON, Chief Judge, 

and JOSEPH F. BIANCO, MICHAEL H. PARK, WILLIAM J. NARDINI, and STEVEN J.

MENASHI, Circuit Judges, concurring in the order denying rehearing en banc:1

This straightforward and narrow case is easily resolved for the reasons set 

forth in the unanimous panel opinion. I write separately only to respond to the 

arguments raised in the dissent from the denial of rehearing en banc. The dissent 

takes issue with the panel decision based on arguments and authority that the 

appellants themselves never raised or relied upon, either in their briefing to the 

panel or in their petition for panel rehearing. The party presentation principle 

alone precludes the judicial intervention that the dissent proposes. See United 

States v. Sineneng-Smith, 590 U.S. 371, 379–80 (2020). But even if the appellants had 

raised the arguments the dissent now raises for them, those arguments would have 

failed on the merits. I write to explain why.

I. Background

This case arose from the appellants’ collateral attacks on their convictions 

under 18 U.S.C. § 924(c). In 2008, appellants conspired with a drug trafficker to 

rob a large quantity of marijuana and cash from another drug dealer’s home. The 

appellants brought a gun with them to the robbery, a struggle ensued, and the 

1 Senior Circuit Judge Dennis Jacobs, who was a member of the three-judge panel in this case, has 

authorized me to say that he endorses this opinion.
2 

target was fatally shot. Thereafter, the appellants each pleaded guilty to one count 

of conspiracy to commit Hobbs Act robbery, in violation of 18 U.S.C. § 1951, and

one count of using, or aiding and abetting the use of, a firearm during and in 

relation to a crime of violence, which use resulted in the death of another person, 

in violation of 18 U.S.C. §§ 924(c) and (j).

In exchange for each appellant’s guilty plea and agreement to “waive[] any 

and all rights . . . to appeal or collaterally attack his conviction and any sentence of 

imprisonment” below a certain number of months, the government agreed to 

bring no additional charges and stipulated to a base offense level from which the 

government would recommend certain downward adjustments. Cook App’x at 

28; see id. at 24–25. As it turned out, the district court sentenced the appellants to 

terms well below the number of months set forth in their respective appeal and 

collateral attack waivers, with each appellant’s sentence consisting of equal terms 

for the conspiracy and section 924(c) and (j) convictions, to be served concurrently.

Several years later, notwithstanding the appeal and collateral attack waivers 

contained in their plea agreements, the appellants brought petitions under 28 

U.S.C. § 2255, arguing that their section 924(c) and (j) convictions – but not their 

Hobbs Act robbery convictions – should be vacated because (1) the residual clause 
3 

of section 924(c)(3)(B) is unconstitutionally vague, and (2) conspiracy to commit 

Hobbs Act robbery is not a crime of violence under the elements clause of section 

924(c)(3)(A). In 2016, the district court denied Cook’s petition, both on the merits 

and because it was barred by his collateral attack waiver. Thereafter, the Supreme 

Court issued its opinion in United States v. Davis, 588 U.S. 445, 470 (2019), holding 

that the residual clause of section 924(c)(3)(B) was indeed unconstitutionally 

vague. Following that decision, we held that conspiracy to commit Hobbs Act 

robbery was not a crime of violence under section 924(c), since it would not qualify 

as such under the still-standing elements clause. See United States v. Barrett, 937 

F.3d 126, 127 (2d Cir. 2019), abrogated on other grounds by Lora v. United States, 599 

U.S. 453 (2023). Nevertheless, the district court denied the remaining five

appellants’ petitions on the ground that each appellant had expressly given up his

right to bring a collateral attack.

II. The Appellants’ Waivers Were Knowing and Voluntary and Extended to 

Future Changes in the Law Whether or Not Specifically Contemplated at 

the Time of Their Guilty Pleas

In pleading guilty, each appellant waived “any and all rights . . . to appeal 

or collaterally attack his conviction.” Cook App’x at 28. This waiver was the 

product of a bargain. In exchange for consideration – namely, the government’s 

agreement to forgo additional charges and make certain stipulations that 
4 

effectively capped their sentences – the appellants in turn stipulated that their 

admissions of guilt were final and that they would not seek to undo their guilty 

pleas and convictions in subsequent proceedings. Their waivers were 

comprehensive: the appellants gave up “any and all rights” of appeal or collateral 

attack.

We have long recognized that “[a] defendant’s knowing and voluntary 

waiver of the right to appeal or collaterally attack his conviction and/or sentence 

is enforceable,” Sanford v. United States, 841 F.3d 578, 580 (2d Cir. 2016), and that 

such waivers must be enforced “even though the grounds for appeal arose after 

the plea agreement was entered into,” Garcia-Santos v. United States, 273 F.3d 506, 

509 (2d Cir. 2001). The decision to waive one’s right to appeal or to collaterally

attack a conviction involves, quite obviously, a tradeoff – with the waiver serving 

as the defendant’s “bargaining chip.” United States v. Yemitan, 70 F.3d 746, 748 (2d 

Cir. 1995). On the one hand, the defendant gains whatever consideration the 

government has offered for the waiver. See Garcia-Santos, 273 F.3d at 509

(describing benefits to defendant); United States v. Gomez-Perez, 215 F.3d 315, 318 

(2d Cir. 2000) (same). On the other hand, the defendant forgoes any potential

benefit from a subsequent change in law that might apply retroactively to his case. 
5 

That this decision sometimes turns out to be improvident – because, for example,

a subsequent change in law materializes and creates what would have been a 

meritorious defense – does not mean the waiver was unknowing. A defendant’s 

“inability to foresee that subsequently decided cases would create new appeal 

issues does not supply a basis for failing to enforce an appeal waiver.” United 

States v. Morgan, 406 F.3d 135, 137 (2d Cir. 2005). “On the contrary, the possibility 

of a favorable change in the law after a plea is simply one of the risks that 

accompanies pleas and plea agreements.” Id.

Indeed, it is precisely because collateral attack waivers cover as-yetunknown meritorious defenses and assertions of error that they have value to the 

government. “Defendants who appeal from sentences following plea agreements 

always point to unanticipated . . . developments.” United States v. Wenger, 58 F.3d 

280, 282 (7th Cir. 1995). “To say that a waiver of appeal is effective if and only if 

the defendant lacks grounds for appeal is to say that waivers will not be honored.” 

Id. And to say that waivers will not be honored is to eliminate their “value as a 

bargaining chip in the hands of [future] defendants.” Yemitan, 70 F.3d at 748.

As explained in the panel’s unanimous decision, there are limited situations 

in which we have found appeal and collateral attack waivers to be unenforceable, 
6 

including: “‘(1) where the waiver was not made knowingly, voluntarily, and 

competently; (2) where the sentence was based on constitutionally impermissible 

factors, such as ethnic, racial, or other prohibited biases; (3) where the government 

breached the agreement containing the waiver; (4) where the district court failed 

to enunciate any rationale for the defendant’s sentence,’ and (5) where the waiver 

‘was unsupported by consideration.’” Cook v. United States, 84 F.4th 118, 122 (2d 

Cir. 2023) (alterations and citations omitted) (first quoting United States v. Burden, 

860 F.3d 45, 51 (2d Cir. 2017), then quoting United States v. Lutchman, 910 F.3d 33, 

38 (2d Cir. 2018)). The panel concluded that none of these exceptions applied here 

and noted that subsequent changes in the law are not among the recognized 

exceptions to enforcement of an otherwise valid collateral attack waiver.

III. Balde and Bousley Do Not Contradict the Panel’s Reasoning

The dissent does not contend that the appellants here were somehow

unaware that they were waiving “any and all rights” to appeal or collaterally 

attack their convictions. Instead, the dissent points out that the appellants could

have brought their Davis challenges as ones based on Federal Rule of Criminal

Procedure 11. See Dissent at 10–14. Specifically, the appellants could have argued 

that the district court violated Rule 11 when it failed to inform them that the 

residual clause of section 924(c)(3)(B) was unconstitutionally vague and that 
7 

Hobbs Act robbery conspiracy did not qualify as a crime of violence under the 

remaining elements clause. According to the dissent, Rule 11 challenges must be 

considered notwithstanding a collateral attack waiver, since the enforceability of 

the waiver turns on the merits of the Rule 11 challenge. See United States v. Lloyd, 

901 F.3d 111, 115, 118–24 (2d Cir. 2018) (considering defendant’s Rule 11 

arguments before deciding enforceability of appeal waiver, and concluding that 

Rule 11 arguments did not require vacatur or otherwise void defendant’s appeal 

waiver); United States v. Balde, 943 F.3d 73, 93–95 (2d Cir. 2019) (considering Rule 

11 argument before deciding enforceability of appeal waiver, and concluding that 

Rule 11 error rendered waiver unenforceable).

In essence, the dissent criticizes the panel opinion for not recasting the 

appellants’ Davis arguments as assertions of Rule 11 error. But the appellants were 

represented on appeal by competent counsel who did not even cite Balde or Lloyd. 

That was not for lack of familiarity with Rule 11. Three of the appellants made

Rule 11 arguments that had nothing to do with Davis or section 924(c). See Cook, 

84 F.4th at 122–24. Given that the appellants themselves did not conceive of their

Davis challenges as assertions of Rule 11 error, the panel cannot be faulted for 

failing to reimagine the appellants’ argument for them. Indeed, the panel would 
8 

likely have abused its discretion had it done so. See Sineneng-Smith, 590 U.S. at 375

(holding that Ninth Circuit panel’s “drastic[]” departure from party presentation 

principle was abuse of discretion warranting vacatur of panel’s judgment). 

But even if the appellants had argued that the district court erred under Rule 

11 by failing to tell them that section 924(c)(3)(B) was unconstitutionally vague, 

that argument still would have failed. In fact, the dissent does not even contend

that its hypothetical Rule 11 argument would have succeeded in this case – which

makes this exchange of opinions perplexing. See Dissent at 4 (describing panel’s 

holding as “generally unobjectionable”); id. at 18 n.6 (declining to argue that 

appellants would have prevailed even under dissent’s theories). 

As a threshold matter, neither Lloyd nor Balde stands for the proposition that

a defendant can evade his collateral attack waiver simply by laundering his 

challenge through Rule 11. This is hardly surprising, since we have previously 

rejected the argument that a post-plea change in law retroactively creates Rule 11 

error that voids an appeal waiver. See United States v. Roque, 421 F.3d 118, 121–22 

(2d Cir. 2005). In Roque, the defendant relied on the Supreme Court’s decision in 

United States v. Booker, 543 U.S. 220 (2005) – which rendered the Sentencing 

Guidelines advisory – to argue that “his mistaken belief, shared by the government 
9 

and the District Court, that the Guidelines were mandatory rather than advisory, 

limited his capacity to freely and intelligently enter into the [plea] bargain and 

voids the agreement for mutual mistake.” Roque, 421 F.3d at 122. We disagreed, 

since there was no evidence to suggest that the defendant “was ignorant of his 

legal and constitutional rights in their then-present state.” Id. (emphasis added). We 

noted that, while “ignorance of existing rights may void a plea agreement and a 

waiver of appellate rights,” the defendant’s ignorance of future changes in law 

was irrelevant to whether his “plea and waiver were . . . knowing and intelligent.” 

Id. (emphasis added); see also Morgan, 406 F.3d at 137 & n.2. We therefore enforced 

the defendant’s appeal waiver.

Neither Lloyd nor Balde purported to disturb Roque. Lloyd involved 

deficiencies in the district court’s plea colloquy that were unrelated to any 

subsequent change in law. See Lloyd, 901 F.3d at 120–24 (concluding that district 

court’s failure to explain elements of offense or ask defendant to describe offense 

conduct in detail was error, but not error that affected defendant’s substantial 

rights). And while the panel in Balde concluded that a defendant’s Rule 11 

challenge based on a post-plea change in law – specifically, Rehaif v. United States, 

588 U.S. 225 (2019) – did render the defendant’s appeal waiver unenforceable, the 
10

Balde panel did not even acknowledge, much less attempt to distinguish, Roque. In 

any event, the case here is readily distinguishable from Balde, which involved a 

challenge brought on direct appeal, not collateral attack; arose from the Supreme 

Court’s decision in Rehaif, not Davis; and involved a waiver that was not 

comprehensive but rather “preserved [the defendant’s] right to appeal the district 

court’s denial of his motion [to dismiss the indictment].” Balde, 943 F.3d at 79. 

Given the appellants’ failure to even cite Balde, we are not obliged to reconcile that 

case and Roque.

Moreover, even if Roque did not foreclose a Rule 11 challenge based on

Davis, the existence of a collateral attack waiver (whether enforceable or not) would 

surely be relevant to the merits of the Rule 11 challenge. A defendant who enters 

a guilty plea in conjunction with a comprehensive collateral attack waiver (unlike 

the waiver in Balde) is pleading guilty with the expectation that his conviction will 

be binding on him no matter what future developments in the law bring. See

Morgan, 406 F.3d at 137. It would be strange, then, to conclude that a district court 

commits reversible Rule 11 error when it fails to anticipate the myriad not-yetexistent challenges that the defendant might conceivably be giving up by pleading 

guilty. While the dissent insists that Rule 11 challenges are threshold arguments 
11

that must be considered before a collateral attack waiver is enforced, that order of 

operations simply means we cannot presume the waiver’s enforceability when 

evaluating the threshold Rule 11 challenge. It does not follow that our review of 

the merits of the Rule 11 challenge must be blind to the defendant’s intention to be 

bound by an enforceable collateral attack waiver. And the defendant’s intention

to be so bound undermines any after-the-fact assertion that his plea was 

unknowing.

In any case, the appellants’ hypothetical Rule 11 challenges would have 

failed for any number of additional reasons. For starters, the appellants did not 

raise Rule 11 arguments based on Davis when pleading guilty, on direct appeal, or 

in their section 2255 petitions to the district court. The appellants’ new Rule 11 

arguments would therefore be procedurally defaulted, if not outright time barred. 

See Bousley v. United States, 523 U.S. 614, 621 (1998) (“[T]he voluntariness and 

intelligence of a guilty plea can be attacked on collateral review only if first 

challenged on direct review.”); 28 U.S.C. § 2255(f). And even if the appellants’ 

arguments somehow received plain error review, the appellants would not be able 

to meet their burden of showing (1) that the error affected their substantial rights 

– i.e., that “there is a reasonable probability that [they] would not have pled guilty” 
12

to section 924(c) and (j) offenses had the error not occurred – and (2) that the “error 

had a serious effect on the fairness, integrity[,] or public reputation of judicial 

proceedings.” Greer v. United States, 593 U.S. 503, 508 (2021) (internal quotation 

marks omitted). The record is clear that the appellants could have been convicted 

of their section 924(c) and (j) offenses on the basis of multiple different predicates 

besides conspiracy to commit Hobbs Act robbery, see Cook, 84 F.4th at 125 n.4, and 

nothing in the record suggests that the appellants’ motivations to plead guilty to 

limit their criminal exposure would have been any different had Davis been 

decided before their pleas, see United States v. Dussard, 967 F.3d 149, 158 (2d Cir. 

2020).

It bears noting that section “924(c) does not require the defendant to be 

convicted of (or even charged with) the predicate crime, so long as there is legally 

sufficient proof that the predicate crime was, in fact, committed.” Johnson v. United 

States, 779 F.3d 125, 129 (2d Cir. 2015); see also Tavarez v. United States, 81 F.4th 234, 

241 (2d Cir. 2023). This is precisely the point we relied on in Dussard, where we 

concluded that “the coconspirators’ plan to steal 12 kilograms of cocaine [at 

gunpoint] from the targeted drug dealer” was enough to support a conviction 

under section 924(c) as a narcotics offense – even though the predicate offense to 
13

which Dussard had pleaded guilty was conspiracy to commit Hobbs Act robbery. 

967 F.3d at 156–57. On facts remarkably similar to those here, we determined that 

“Dussard’s conviction . . . on the basis of firearm possession during and in relation 

to a Hobbs Act conspiracy” did not affect his substantial rights since “Dussard was 

motivated – and the government was willing – to enter into a plea agreement that 

would allow him to plead guilty to a [section] 924(c)(1)(A)(i) offense.” Id. at 157–

58. We reasoned that, “[h]ad he and the government anticipated the decision 

in Davis, this could easily have been accomplished – with no difference in the 

offense of conviction or in the punishment – by simply having the . . . [plea 

agreement] refer instead to the drug trafficking crime” rather than to Hobbs Act 

robbery conspiracy. Id. at 158.

Given that we are analyzing a hypothetical argument that no one besides 

the dissent has raised – and which even the dissent seems to acknowledge would 

not have prevailed in this case – it is hardly necessary to belabor this point. But 

the fact that the dissent’s reading of Balde would require us to conduct a complete 

merits analysis of the appellants’ Davis challenges (repackaged as Rule 11 

challenges), just to determine whether the appellants’ collateral attack waivers bar 
14

them from raising Davis challenges, indicates that something is wrong with the 

dissent’s approach. 

Separately, the dissent argues that the Supreme Court’s decision in Bousley

establishes that the appellants’ collateral attack waivers are unenforceable. But 

Bousley did not involve an appeal or collateral attack waiver at all. Instead, the 

case turned on whether the petitioner had procedurally defaulted his section 2255 

challenge to his section 924(c) conviction after the Supreme Court held that 

“using” a firearm for purposes of section 924(c) meant “‘active employment of the 

firearm,’” not mere possession. Bousley, 523 U.S. at 616 (quoting Bailey v. United 

States, 516 U.S. 137, 144 (1995)). Although Bousley relied on this post-plea 

precedent to argue that the district court had “misinformed him as to the elements 

of a [section] 924(c)(1) offense,” id. at 618, the Supreme Court did not vacate 

Bousley’s conviction or even consider his argument on the merits. It merely 

concluded that Bousley’s procedural default barred his claim for relief, which 

could be advanced only if he could demonstrate that he met one of the exceptions 

to such default. The Supreme Court ruled out one of those exceptions and 

remanded the case for consideration of the other. Consideration of the exceptions

to procedural default was necessary only because the Supreme Court did not view 
15

the error that Bousley asserted to be unwaivable. To the contrary, the Supreme 

Court explicitly noted that “significant procedural hurdles” would have to be 

overcome before Bousley’s claim could be considered on the merits. Id. at 621.

Since Bousley, the Supreme Court has confirmed that a challenge based on a 

post-plea judicial interpretation of an element of the crime of conviction is not an 

assertion of structural error and can be forfeited. See Greer, 593 U.S. at 507, 513–14. 

In Greer, the Supreme Court deemed as forfeited – and therefore subject to plain 

error review – a defendant’s direct appeal of his guilty plea based on the Supreme 

Court’s clarification in Rehaif that knowledge of one’s status as a felon is an element 

of a section 922(g) felon-in-possession offense. See id. at 507. Both Greer and 

Bousley make clear that challenges based on post-plea changes in law are subject 

to forfeiture. Nothing in either case suggests that such challenges are not also 

subject to appeal or collateral attack waiver or that recasting such challenges as a 

Rule 11 violation constitutes a miracle cure for otherwise procedurally barred 

claims. 

In sum, the dissent’s assertion that “the panel’s legal analysis clashes with 

the Supreme Court’s and this Circuit’s law” is wrong. Dissent at 1. As explained 

above, there is no conflict between the panel decision and Balde. Nor does the 
16

panel decision conflict with Bousley. Given that the vast majority of our sister 

circuits have concluded that a collateral attack waiver is enforceable to bar a Davis 

challenge, and given that the Supreme Court has not resolved the heavily onesided split, it can hardly be said that the panel opinion “directly conflicts with the 

Supreme Court’s . . . binding precedent.” Dissent at 4; see King v. United States, 41 

F.4th 1363, 1367–70 (11th Cir. 2022); Portis v. United States, 33 F.4th 331, 334–39 (6th 

Cir. 2022); United States v. Goodall, 21 F.4th 555, 561–65 (9th Cir. 2021); Oliver v. 

United States, 951 F.3d 841, 845–48 (7th Cir. 2020).

IV. The Miscarriage of Justice Framework Is the Appropriate Safety Valve for 

Collateral Attack Waivers

Footnote four of the Cook panel’s opinion acknowledged the possibility that 

a collateral attack waiver may be unenforceable in the event that a defendant’s 

conviction and punishment are for “an act that the law did not make criminal.” 

Cook, 84 F.4th at 125 n.4 (alterations omitted) (quoting Davis v. United States, 417 

U.S. 333, 346 (1974)). As the Supreme Court recognized in Davis – a case that did 

not involve an appeal or collateral attack waiver – “[t]here can be no room for 

doubt that such a circumstance inherently results in a complete miscarriage of 

justice and presents exceptional circumstances that justify collateral relief under 
17

s[ection] 2255.” Davis, 417 U.S. at 346–47 (alterations and internal quotation marks 

omitted). 

The panel concluded that this case did not present an occasion to recognize 

such a miscarriage of justice exception to the enforceability of collateral attack 

waivers. But we did acknowledge that a future case may arise where the interests 

of justice require an otherwise enforceable collateral attack waiver to be set aside. 

We remain convinced that the miscarriage of justice framework – which involves 

asking the straightforward question of whether a defendant has been convicted 

and imprisoned for conduct that the law does not make criminal – provides the 

appropriate safety-valve by which certain defendants, in limited and 

extraordinary circumstances, can be released from their otherwise enforceable 

collateral attack waivers. But this is clearly not that case, since appellants’ conduct 

is unquestionably criminal, even after the Supreme Court’s 2019 decision in Davis. 

Simply put, the denial of appellants’ request for a Davis-generated windfall after

they had already received the benefits of their negotiated pleas in no way 

constitutes a miscarriage of justice, and hardly warrants en banc review. 
18

V. Conclusion

For the foregoing reasons, I concur in the Court’s order denying en banc 

rehearing of this case.
NATHAN, Circuit Judge, concurring in the order denying rehearing en banc: 

I originally voted to rehear these consolidated cases en banc because the 

panel opinion appeared to reach a holding contrary to Supreme Court and Second 

Circuit precedent on an issue of great importance in our criminal justice system. 

My colleagues who join the other separate writings today all agree that the panel 

opinion did not consider or resolve any argument under Bousley v. United States, 

523 U.S. 614 (1998), United States v. Balde, 943 F.3d 73 (2d Cir. 2019), and related 

caselaw, the issue that concerns me. Given this, I acknowledge that rehearing 

these cases en banc over an issue the panel did not reach would not be warranted 

and so I now concur in the denial of rehearing en banc. I write briefly to explain 

why I originally voted to rehear the case.

As I see it, these consolidated cases concern a relatively simple, yet 

significant, question: Say you agree to plead guilty to a crime, but it later turns 

out that neither you, nor your counsel, nor the court itself accurately understood 

the law under which you were charged. What you have pled to, in fact, is not and 

never was a crime. Can an appeal or collateral-attack waiver in your plea 

agreement still prevent you from challenging that conviction, keeping you in 

prison for a non-existent crime? As Judge Robinson notes, multiple circuits have 
split on this question.1 See Robinson, J., dissenting op. at 16-17. If your case arises 

in the Fourth Circuit, your waiver will not prevent you from raising such a 

challenge. In the Sixth, Ninth, or Eleventh Circuits, despite your legal innocence, 

you would not be so fortunate. In the Seventh and—after the panel’s decision—in 

this Circuit, the answer is perhaps not so clear.

But the right answer, under Supreme Court and Second Circuit precedent, 

is clear. And it is clearly no. A plea in which the defendant was misinformed as 

to the true nature of the offense is not a knowing and voluntary plea. And an 

appeal or collateral-attack waiver in a plea agreement that was not knowing and 

voluntary does not bind the defendant. 

Our precedent establishes that “if we are not assured that a defendant’s plea 

was voluntary and knowing, we will not enforce any waivers provided in the 

related plea agreement.” United States v. Lloyd, 901 F.3d 111, 118 (2d Cir. 2018); see 

also United States v. Haynes, 412 F.3d 37, 39 (2d Cir. 2005) (“We reiterate that a 

defendant may of course seek relief from the underlying plea where the plea was 

not knowing and voluntary[.]”); cf. United States v. Difeaux, 163 F.3d 725, 728 (2d 

1 See United States v. McKinney, 60 F.4th 188, 191–93 (4th Cir. 2023); King v. United States, 41 F.4th 

1363, 1368 (11th Cir. 2022); Portis v. United States, 33 F.4th 331, 336-38 (6th Cir. 2022); United 

States v. Goodall, 21 F.4th 555, 562 (9th Cir. 2021); Oliver v. United States, 951 F.3d 841, 847 (7th 

Cir. 2020). 
Cir. 1998) (“A defendant who knowingly and voluntarily enters into a plea 

agreement containing a waiver of appeal rights . . . is bound by the waiver 

provision.” (emphasis added)).

In short, under our Circuit’s law, if Petitioners’ pleas were not knowing and 

voluntary, then their collateral-attack waivers cannot be enforced against them. 

And, as Judge Robinson demonstrates, see Robinson, J., dissenting op. at 6-14, 

Petitioners’ pleas were not knowing and voluntary because they were 

misinformed as to the very nature of the offense to which they pled. See Bousley, 

523 U.S. at 618-19; Balde, 943 F.3d at 93-94. The syllogism is not hard to complete: 

Petitioners’ collateral-attack waivers are therefore unenforceable.

The panel’s opinion seemingly reached a contrary conclusion, which is why 

I voted to rehear these cases en banc. And the fact that observing the problems 

with the opinion required reasoning that differs from the parties’ exact arguments

or consulting cases not cited by the parties does not, as Judge Sullivan contends, 

mean that those who sought en banc review would contravene the party 

presentation principle. See Sullivan, J., concurring op. at 1. Indeed, the panel itself 

characterized the arguments raised by Petitioners as a contention that “their pleas 

[were] involuntary and unknowing,” Cook v. United States, 84 F.4th 118, 122 (2d 
Cir. 2023). It certainly would not have abused its discretion by evaluating a 

different theory for why that is the case. We are “not hidebound by the precise 

arguments of counsel,” United States v. Sineneng-Smith, 590 U.S. 371, 380 (2020), 

and, “[w]hen an issue or claim is properly before the court,” we are not “limited 

to the particular legal theories advanced by the parties,” Kamen v. Kemper Fin. 

Servs., Inc., 500 U.S. 90, 99 (1991); see also Snider v. Melindez, 199 F.3d 108, 114 (2d 

Cir. 1999).

In any event, as a result of the en banc poll, it is now clear that the underlying

opinion did not consider or resolve the applicability of Bousley, Balde, and related 

precedents to appeal or collateral-attack waivers in circumstances like these. 

Given this, I now agree that en banc review is not warranted. 
No. 16-4107(L) 

Cook v. United States 

1 

BETH ROBINSON, Circuit Judge, joined by EUNICE C. LEE and SARAH A. L. MERRIAM,

Circuit Judges, dissenting from the order denying rehearing en banc: 

I don’t write to object to the panel’s actual narrow holding—found in a 

footnote at the end of its opinion. Nor do I argue that the panel should have 

granted the parties relief they did not seek. But I’m compelled to dissent from the 

denial of rehearing en banc because the panel’s opinion includes assertions presented 

as precedential rule statements that sweep far more broadly than the panel’s actual 

holding, and squarely conflict with binding precedent of the Supreme Court and 

this Court. Far from urging the panel to reach questions never raised by the 

parties, I advocate for en banc review because, in my view, the panel’s analysis 

purports to answer questions neither raised by the parties nor essential to the 

panel’s ultimate ruling, and its answers to those questions conflict with binding 

law. A precedential opinion of this Court should follow binding precedent even 

if neither party has cited that precedent. Because the opinion sows confusion in 

our Circuit’s law and “involves a question of exceptional importance,” en banc

review is warranted. Fed. R. App. P. 35(a)(2).

1. The Limits of the Panel Opinion’s Holding 

The opinion’s actual holding is narrow: A collateral-attack waiver bars a 

challenge to a § 924(c) conviction predicated on an act that is not a valid “crime of 
2 

violence” if the record establishes a different and valid predicate for the § 924(c) 

conviction. See Cook v. United States, 84 F.4th 118, 125 & n.4 (2d Cir. 2023). Two 

limitations on the scope of the panel’s holding constrain its reach. First, in a 

footnote, the panel makes clear that it does not purport to decide whether, in the 

absence of an alternative valid predicate, the collateral-attack waiver would be 

enforceable. See id. (explaining that this case does not require the Court to decide

“whether a collateral-attack waiver would be unenforceable in the event of a 

‘complete miscarriage of justice,’” and identifying alternative predicate acts in the 

record that could support a § 924(c) conviction (citation omitted)). 

Thus the opinion does not purport to decide whether a plea agreement’s 

collateral-attack waiver is enforceable where the § 924(c) conviction is 

unsupported by any valid predicate act. Whether, in this Circuit, enforcing the 

waiver in such circumstances would “irreparably discredit the federal courts,” 

United States v. Riggi, 649 F.3d 143, 148 (2d Cir. 2011) (internal citation omitted) 

(alteration adopted), or would otherwise impermissibly effectuate a manifest 

injustice, remains an open question. See United States v. Lajeunesse, 85 F.4th 679, 

692–94 (2d Cir. 2023) (declining to enforce an appeal waiver because the district 

court’s failure to allow allocution during sentencing implicated serious public 

policy concerns). That distinguishes the panel’s opinion from those of other 
3 

circuits that have addressed the broader question. See Cook, 84 F.4th at 124–25 

(discussing sister circuit precedent). 

Second, as Judge Sullivan’s concurrence in the denial of rehearing en banc

(“Panel Concurrence”)1 emphasizes, see above at 7–8, the panel opinion does not 

purport to address whether the appeal waiver is unenforceable on the basis that 

the petitioners were misinformed about the “true nature” of the charge to which 

they pled guilty, rendering their underlying pleas unknowing and involuntary. 

Bousley v. United States, 523 U.S. 614, 619 (1998). That makes sense; the petitioners 

did not expressly argue that their guilty pleas to the § 924(c) charges were 

involuntary because they were misinformed about whether conspiracy to commit 

Hobbs Act robbery, in violation of 18 U.S.C. § 1951, is a valid crime-of-violence 

predicate under § 924(c).2 Instead, in evaluating the enforceability of the appeal 

waivers, the panel treated the underlying pleas as if they were knowing and 

1 I refer to Judge Sullivan’s concurrence as the “Panel Concurrence,” because the members of 

the original panel are among those who have joined or endorsed it. See above, Panel Concurrence, 

at 1 & n.1.

2 The argument that their pleas should be vacated because they did not know that their 

conduct did not violate the offense of conviction is arguably implicit in Petitioners’ argument on 

the merits of their appeal. In particular, Petitioners argue that the collateral-attack waiver should 

not “preclude the ordinary remedy when someone has been convicted of a non-existent offense.” 

See, e.g., Latulipe Brief at 6. Vacating a conviction based on the fact that the plea was unknowing 

or involuntary is an “ordinary remedy” when a defendant unwittingly pleads guilty based on 

conduct that doesn’t actually violate the offense of conviction. See, e.g., United States v. Balde, 943 

F.3d 73, 88, 98 (2d Cir. 2019) (vacating a conviction secured by a guilty plea that was not knowing 

and voluntary because the defendant was not informed of “the true nature of the charge” against 

him). 
4 

voluntary. See Cook, 84 F.4th at 125 (concluding that “where the waiver itself is 

clear, unambiguous, knowingly and voluntarily entered, and supported by 

consideration . . . the terms of the plea agreements must be enforced” (emphasis 

added)). Because the opinion did not focus on this argument, much of its analysis

is squarely in conflict with binding law, as set forth more fully below. 

2. The Confusion Sown by the Panel’s Opinion

Notwithstanding its narrow and generally unobjectionable holding, the

backbone of the analysis in the opinion directly conflicts with the Supreme Court’s 

and this Circuit’s binding precedent. It would be tempting to dismiss the 

problematic language as dicta, and in a technical sense, it is. But the objectionable 

reasoning permeates this precedential opinion, which presents as law propositions 

that conflict with binding precedent. As a result, the opinion muddles this 

Circuit’s law. 

A. Binding Precedent

The panel’s opinion rests heavily on the proposition that “ignorance of 

future rights is unavoidable and not a basis for avoiding a plea agreement.” Cook, 

84 F.4th at 125 (quoting United States v. Haynes, 412 F.3d 37, 39 (2d Cir. 2005)). This 
5 

assertion, in the right context, accurately reflects the law. But this isn’t the right 

context. 

As the opinion notes, we have enforced collateral-attack waivers in the face 

of “evolving judicial precedent” because “the possibility of a favorable change in

the law after a plea is simply one of the risks that accompanies pleas and plea 

agreements.” Id. at 124 (quoting United States v. Morgan, 406 F.3d 135, 137 & n.3

(2d Cir. 2005)). 

But the Supreme Court, and this Court, have rejected that approach in cases 

like this in which post-plea binding precedent establishes that a defendant pled 

guilty under a misapprehension of the essential elements of the charge. In those 

cases, the guilty plea cannot be considered knowing and voluntary—and any 

associated waiver of the right to appeal or collaterally challenge the resulting 

conviction is unenforceable. 

Start with the Supreme Court. Its law is well established that a defendant 

cannot enter a knowing and voluntary plea “unless the defendant received ‘real 

notice of the true nature of the charge,’” which the Court has described as “the first 

and most universally recognized requirement of due process.” Henderson v. 

Morgan, 426 U.S. 637, 645 (1976) (quoting Smith v. O’Grady, 312 U.S. 329, 334 (1941)) 

(affirming vacatur of state conviction pursuant to a guilty plea where the 
6 

defendant had not been informed that intent to cause death was an element of 

second-degree murder). There is no exception to this principle when a defendant’s 

ignorance of the “true nature of the charge” is only revealed by post-plea clarifying 

caselaw. Id. at 645.

The Supreme Court made this clear in Bousley, which is closely analogous to 

this case. 523 U.S. at 616–17. Bousley pled guilty to drug possession with intent 

to distribute, in violation of 21 U.S.C. § 841(a)(1), and to using a firearm “during 

and in relation to a drug trafficking crime,” in violation of 18 U.S.C. § 924(c). Id. at 

616. Several years after his conviction became final, Bousley filed a habeas petition 

challenging the factual basis for his guilty plea on the ground that “neither the 

‘evidence’ nor the ‘plea allocution’ showed a ‘connection between the firearms in 

the bedroom of the house, and the garage, where the drug trafficking occurred.’” 

Id. at 617 (citations omitted). The district court dismissed Bousley’s petition, and 

he appealed to the Eighth Circuit. Id. at 617. While his case was pending in the 

court of appeals, the Supreme Court held in Bailey v. United States that mere 

possession of a firearm was insufficient to support a conviction for “use” of a 

firearm under § 924(c)(1); rather, the statute required “active employment of the 

firearm,” such as “brandishing, displaying, bartering, striking with, and, most 

obviously, firing or attempting to fire” the weapon. 516 U.S. 137, 143, 148 (1995). 
7 

Nevertheless, the Eighth Circuit affirmed the district court’s dismissal of Bousley’s 

petition.

On certiorari review, the Supreme Court began with the well-established 

principles that a plea of guilty is constitutionally valid only to the extent it is 

“voluntary” and “intelligent,” and is only “voluntary” and “intelligent” if the 

defendant first receives “real notice of the true nature of the charge” against the 

defendant. Bousley, 523 U.S. at 618 (citations omitted). It explained: 

[P]etitioner contends that the record reveals that neither 

he, nor his counsel, nor the court correctly understood 

the essential elements of the crime with which he was 

charged. Were this contention proved, petitioner’s plea 

would be, contrary to the view expressed by the Court of 

Appeals, constitutionally invalid.

Id. at 618–19. Significantly, the Court’s analysis was not grounded in the 

procedural requirements of Rule 11 of the Federal Rules of Criminal Procedure; it 

was rooted in due process under the United States Constitution. See id. at 618 

(explaining that receiving “real notice of the true nature of [a] charge” is “the first 

and most universally recognized requirement of due process” (emphasis added)

(citation omitted)).

The Court distinguished the Bousley scenario from cases like Brady v. United 

States, 397 U.S. 742 (1970), in which subsequent legal developments revealed that, 

at the time of a plea, a defendant had not correctly assessed “every relevant factor 
8 

entering into [the] decision” to plead guilty, such as the strength of the 

government’s evidence or potential penalties. Bousley, 523 U.S. at 619 (quoting 

Brady, 397 U.S. at 757). In Bousley, the defendant was not just misinformed about 

some factor bearing on his assessment of the pros and cons of a guilty plea; he 

asserted that “he was misinformed as to the true nature of the charge against him.” 

Id. at 619 (emphasis added). 

This distinction is critical. The Cook petitioners clearly fall in the Bousley

category insofar as they were misinformed as to the meaning of a critical element 

of the charge to which they pled guilty (i.e., the meaning of “crime of violence”). 

But the panel’s reasoning draws instead on the distinct Brady line of cases. See 

Cook, 84 F.4th at 124–25. In United States v. Morgan, we cited Brady for the 

proposition that “[a] voluntary plea of guilty intelligently made in the light of the 

then applicable law does not become vulnerable because later judicial decisions 

indicate that the plea rested on a faulty premise.” 406 F.3d at 137 (citation 

omitted). And in Sanford v. United States, which involved post-plea caselaw 

implicating the applicable Sentencing Guidelines calculation, we drew from the

same lineage. See 841 F.3d 578, 580 (2d Cir. 2016) (citing precedent that relied on 

Morgan for the proposition that “the possibility of a favorable change in the law 

after a plea is simply one of the risks that accompanies pleas and plea 
9 

agreements”). See also United States v. Roque, 421 F.3d 118, 121 (2d Cir. 2005) 

(rejecting claim that guilty plea was unknowing or involuntary where, post-plea, 

the Supreme Court held in United States v. Booker, 543 U.S. 220 (2005), that the 

Guidelines sentence calculation pursuant to which Roque pled guilty was not 

mandatory).

The situation here does not involve a subsequent evolution in the law that 

merely undermines the sentence calculation or other considerations that led the 

Cook petitioners to plead guilty; it involves clarification that the conduct to which 

they admitted did not violate the statute of conviction. Bousley is squarely on point 

and cannot be meaningfully distinguished.3

Importantly, this Court has confirmed that this principle applies even when a 

defendant’s plea agreement includes an express appeal or collateral-attack waiver. We 

3 Nor has the Supreme Court overruled or otherwise dialed back its Bousley holding. Greer v. 

United States, 593 U.S. 503 (2021), cited in the Panel Concurrence, see above at 15, does not even 

mention Bousley, let alone overrule it. And Greer is not on all fours with Bousley. The defendants 

in Greer were not convicted based on conduct that did not in fact constitute a criminal offense. In 

Greer, defendant Gary challenged his conviction of a felon-in-possession offense on the basis that 

the court failed to advise him of the mens rea element of the charge—that a jury would have to 

find that he knew he was a convicted felon at the time of his possession. See 593 U.S. at 507. The 

Court concluded that the instructional omission was error, and that it was plain. See id. at 508. 

(The Court reached that conclusion even though the Supreme Court had not decided Rehaif v. 

United States, 588 U.S. 225 (2019), the case identifying the mens rea element for the felon-in-
10 

decided that question in United States v. Balde, 943 F.3d 73, 93–94 (2d Cir. 2019). 

Balde involved a defendant who pled guilty to unlawful possession of a firearm by 

a noncitizen who “is illegally or unlawfully in the United States,” in violation of 

18 U.S.C. § 922(g)(5)(A) and § 924(a)(2). Id. at 77. Within days of this Court’s 

decision affirming Balde’s conviction, the Supreme Court decided Rehaif v. United 

States, holding that in order to prove a charge under that statutory framework, the 

government had to prove that the defendant was knowingly “illegally or 

unlawfully in the United States” when possessing the firearm. 588 U.S. 225, 235 

(2019). Balde then sought rehearing on the ground that the guilty plea was 

accepted in error, both because he was not advised of the knowledge requirement 

later announced in Rehaif, and because the record contained no factual basis to 

support that element of the crime. Balde, 943 F.3d at 78. In response, the 

government argued that by pleading guilty, Balde waived any argument that he 

lacked the requisite knowledge. Id. at 93. Importantly, the government 

possession charges, until after Gary’s guilty plea.). Considering the prejudice prong in its plain 

error review, the Court concluded that Gary had failed to show that, had he been properly 

instructed, there was a reasonable probability that he would not have pled guilty. Id. at 509. He 

had been convicted of multiple felonies, and never disputed that fact. Id. And he made no 

argument or representation on appeal that he had evidence that he did not know he was a felon 

when he possessed the firearms. Id. at 509–10. Thus, Greer is not a case in which a defendant

unwittingly pled guilty and was convicted for conduct which did not actually constitute a 

violation of the offense of conviction based on misadvice—albeit understandable misadvice—as 

to the elements of the crime of conviction. 
11 

emphasized that the explicit appeal waiver in Balde’s plea agreement prevented 

him from raising his Rehaif-based argument on rehearing. Id.

We rejected the government’s contention, noting, “The government’s waiver 

argument . . . necessarily assumes a valid plea that was knowingly and 

intelligently entered in compliance with the requirements of Rule 11 of the Federal 

Rules of Criminal Procedure.” Id. We recognized that an appeal waiver in a plea 

agreement “does not bar challenges to the process leading to the plea . . . 

[including] those asserting that the district court failed to comply with the 

important strictures of Rule 11.” Id. (quoting United States v. Lloyd, 901 F.3d 111, 

118 (2d Cir. 2018)). And we cited prior decisions in which this Court concluded 

that an appeal waiver was not enforceable where the district court failed to explain 

to the defendants “the elements of the crimes” to which they were pleading guilty. 

Balde, 943 F.3d at 93–94 (citing Lloyd, 901 F.3d at 121; United States v. Prado, 933 F.3d 

121, 153 (2d Cir. 2019)).

The fact that the deficiency in Balde’s plea became apparent only after the 

Supreme Court’s Rehaif decision did not change the analysis:

Because of the Supreme Court’s intervening decision in 

Rehaif, Balde’s plea is now similarly deficient under Rule 

11. That, of course, was through no fault of the district 

court: the court was merely applying what had long been 

the law of the circuit in requiring knowledge only of the 

possession of the firearm. But in interpreting the statute, 
12 

Rehaif instructs us about what § 922(g)(5)(A) has always

meant . . . . In evaluating Balde’s claims of error, 

therefore, we must look to the law as clarified by the 

Supreme Court in Rehaif. 

Balde, 943 F.3d at 94. 

Because Balde was not informed about the requisite standard of knowledge,

we concluded that “he was not properly informed as to the ‘nature of each charge 

to which he was pleading’ guilty.” Id. (quoting Fed. R. Crim. P. 11(b)(1)(G))

(alteration adopted). We also concluded that the record did not establish the 

requisite factual basis to support the state-of-mind element of the charge against 

Balde. Id. at 95. In such circumstances, we said, “it is hard to imagine how a 

defendant’s plea could be knowing and voluntary.” Id. at 95 (citation omitted). 

Closing the loop, we stated: “We therefore conclude that Balde has not waived his 

ability to attack his plea under Rehaif, either by pleading guilty generally or by 

agreeing to an appeal waiver provision.” Id. (emphasis added).

That makes sense. We have long recognized that an appeal waiver “does 

not . . . act as a waiver against an appeal on the basis that the plea itself, including 

the waiver, was not intelligent or voluntary.” Roque, 421 F.3d at 121 (emphasis 

added). And it would be incongruous to suggest otherwise. We interpret 

contracts, including plea agreements, “as a whole.” United States v. Hamdi, 432 

F.3d 115, 123 (2d Cir. 2005) (citation omitted). A collateral-attack waiver is one 
13 

provision in a comprehensive plea agreement, not a freestanding contract

independent of the plea deal as a whole. If the decision to enter into the plea 

agreement isn’t knowing and voluntary, then the collateral-attack waiver falls

with the rest of the agreement. 

In short, our Circuit’s law clearly provides that when a subsequent binding 

court decision clarifies the elements of a crime in a way that undermines the 

knowing and voluntary nature of a defendant’s plea of guilty to that crime, neither 

the waiver implicit in the guilty plea, nor any express appeal or collateral-attack waiver, 

is enforceable to bar a challenge to the defendant’s conviction.4 This law is not 

grounded solely in the procedural requirements of Rule 11; it is rooted in the 

Constitution. See McCarthy v. United States, 394 U.S. 459, 465 (1969) (recognizing 

that Rule 11, while not constitutionally mandated, “is designed to assist the district 

judge in making the constitutionally required determination that a defendant’s 

4 Although the Panel Concurrence identifies various factual or procedural differences 

between this case and Balde—e.g., Balde “arose from the Supreme Court’s decision in Rehaif, not

Davis”—it offers no basis for ascribing legal significance to those differences. See above at 10. In 

United States v. Davis, the Supreme Court concluded that the residual clause in the definition of 

crime of violence in 18 U.S.C. § 924(c)(3)(B) was unconstitutionally vague. 588 U.S. 445, 470 

(2019). As a consequence of this holding, this Court subsequently held that conspiracy to commit 

Hobbs Act robbery is not a valid predicate “crime of violence” for a § 924(c) conviction. United 

States v. Barrett, 937 F.3d 126, 127 (2d Cir. 2019), abrogated on other grounds by Lora v. United States, 

599 U.S. 453 (2023). Thus, if anything, a Davis error leading to a conviction based on acts that are 

not in fact unlawful is more concerning than a Rehaif error that, for the reasons identified in Greer, 

rarely leads to such a wrongful conviction. See Greer, 593 U.S. at 508 (“Felony status is simply not 

the kind of thing that one forgets.” (citation omitted)). 
14 

guilty plea is truly voluntary” (emphasis added)); see also United States v. Maher, 

108 F.3d 1513, 1520 (2d Cir. 1997) (same).

B. The Panel’s Opinion

If the panel’s opinion merely had bits of stray language in tension with these 

principles, en banc review might not be warranted. Its core holding, embodied 

primarily in a footnote at the end of the decision, is compatible with our 

established law on these points. But, presumably because the panel was not 

focused on the Balde/Bousley issue given the petitioners’ arguments on appeal, 

most, if not all, of the opinion’s above-the-line discussion of the enforceability of 

the collateral-attack waiver flies in the face of these precedents. 

For example, the summary statement in the opinion’s introductory 

paragraph states: “Because subsequent changes in the law do not allow Petitioners 

to back out of their valid agreements with the government, the waivers are 

enforceable.” Cook, 84 F.4th at 120. For the reasons set forth above, this assertion, 

while true in other contexts, has no purchase here. Binding precedent from this 

Court and the Supreme Court holds that in a case like this, clarifications of the 

law—like the Supreme Court’s decisions in Johnson and Davis striking as 

unconstitutionally vague the residual clauses in statutory definitions of “crimes of 
15 

violence”—can very well render a guilty plea unknowing and involuntary and 

thus any appeal or collateral-attack waiver unenforceable.5

Likewise, the entire section captioned, “Even in the Face of Evolving Judicial 

Precedent, Petitioners’ Waivers are Enforceable” ignores and contradicts our 

express analysis in Balde (and the Supreme Court’s guidance in Bousley). The 

panel’s discussion wrongly suggests that a collateral-attack waiver in a plea 

agreement overrides the argument that the plea agreement itself was unknowing 

and involuntary because the description of the essential elements of the crime 

relied upon by the pleading defendant was rendered inaccurate by subsequent, 

clarifying caselaw. Id. at 124. 

Moreover, the opinion’s citation to other circuits that have reached the 

“same conclusion” is at odds with its actual narrow holding. Id. If the panel really 

did purport to embrace the same conclusion as the other circuits cited, its holding 

would be far broader than the narrow holding embodied in footnote 4, and would 

be squarely at odds with our decision in Balde. The decisions cited by the panel do 

not simply hold that an appeal or collateral-attack waiver bars a post-Davis

5 In Johnson v. United States, the Supreme Court held that the residual clause of the Armed 

Career Criminal Act, 18 U.S.C. § 924(e)(2)(B), was unconstitutionally vague. See 576 U.S. 591, 597 

(2015). United States v. Davis, discussed above at note 4, held that the similarly-worded residual 

clause in 18 U.S.C. § 924(c) was also unconstitutionally vague. See 588 U.S. at 470.
16 

challenge to a § 924(c) conviction based on a predicate act that does not constitute 

a valid crime of violence in cases where the record establishes that an alternate 

predicate crime of violence can support a § 924(c) conviction.6 They hold, contrary 

to Balde, that a Davis challenge to a § 924(c) conviction based on a predicate

invalidated by Johnson and Davis is barred by an appeal or collateral-attack waiver. 

See King v. United States, 41 F.4th 1363, 1368 (11th Cir. 2022); Portis v. United States, 

33 F.4th 331, 336 (6th Cir. 2022); United States v. Goodall, 21 F.4th 555, 562 (9th Cir. 

2021); Oliver v. United States, 951 F.3d 841, 848 (7th Cir. 2020). 

If the opinion did, in fact, reach the same conclusion as these circuits, then

we would find ourselves on both sides of a circuit split. See Balde, 943 F.3d at 95; 

United States v. McKinney, 60 F.4th 188, 191–93 (4th Cir. 2023) (declining to enforce 

petitioner’s appeal waiver where he showed his § 924(c) conviction rested on an 

invalid predicate, he made “a cognizable claim of actual innocence,” and barring 

the challenge would be a miscarriage of justice (citation omitted)). 

Even an attentive reader who scours footnotes could be left with the 

misimpression that the Cook opinion holds generally that challenges to § 924(c) 

6 Like the panel here, the court in Oliver v. United States did conclude, among other things, 

that enforcing collateral-attack waivers to bar the defendants’ post-conviction challenges to their 

§ 924(c) convictions would not constitute a miscarriage of justice where other conduct established 

by the record constituted a valid predicate for the § 924(c) conviction. See 951 F.3d 841, 847 (7th

Cir. 2020).
17 

convictions resting on invalid predicate acts are barred by appeal or collateralattack waivers—a conclusion that would be squarely in conflict with our decision 

in Balde. The Panel Concurrence makes clear that the panel did not intend to so 

hold, see above at 9–10, 15–16, and that’s a good thing. But the panel’s precedential 

opinion still says what it says, and includes extensive analysis and rule statements 

that squarely conflict with binding law. For that reason, en banc review is 

necessary to “maintain uniformity of the court’s decisions.” Fed. R. App. P. 

35(a)(1).7

3. Exceptional Importance

Finally, this case raises exceptionally important questions surrounding the 

limits of plea bargaining. As we all know, the vast majority of federal criminal 

cases are resolved through plea bargaining. Recent statistics show that about 97% 

of all federal cases end in guilty pleas.8 As a result, plea bargaining has morphed 

into more than just “some adjunct to the criminal justice system; it is the criminal 

7 As noted above, I do not argue that the panel should have rewritten the parties’ arguments, 

or granted them relief they did not seek. See above, Panel Concurrence, at 7. Whether the 

defendants may have faced insurmountable challenges even if they had argued that their pleas 

were involuntary is beside the point. See id. at 11–15. And I do not seek an “answer” in this case 

to any particular question. See above, Lohier, J., concurring in denial of rehearing en banc, at 3. I 

do argue that the panel should conform its analysis to its actual holding and eliminate 

unnecessary assertions of law that conflict with binding precedent. 

8 U.S. Sent’g Comm’n, 2023 Sourcebook of Federal Sentencing Statistics, 32 (2023), 

https://www.ussc.gov/sites/default/files/pdf/research-and-publications/annual-reports-andsourcebooks/2023/2023_Sourcebook.pdf [https://perma.cc/L8CZ-EHXL]. 
18 

justice system.” Missouri v. Frye, 566 U.S. 134, 144 (2012) (quoting Robert E. Scott 

& William J. Stuntz, Plea Bargaining as Contract, 101 Yale L.J. 1909, 1912 (1992)

(emphasis in original)). 

Plea agreements necessarily require defendants to waive a host of critical 

constitutional rights, including the right to remain silent and put the government 

to its proof, the right to trial by jury, and the right to confront witnesses. Appeal 

waivers up the ante. They purport to sever a crucial check on what is now the 

heart of the criminal justice system—plea agreements—by preventing courts from 

reviewing unlawful convictions secured by a guilty plea. 

And such waivers have become the norm. A 2005 study shows that 76% of 

plea agreements in this Circuit contained appeal waivers. See Nancy J. King & 

Michael E. O’Neill, Appeal Waivers and the Future of Sentencing Policy, 55 Duke L.J.

209, 232 (2005) (empirical study sampling 971 randomly selected federal cases with 

written plea agreements in fiscal year 2003). There is no reason to think these 

numbers would be lower today. I suspect they may be higher. 

For that reason, it’s not surprising that unconstrained appeal waivers face 

mounting criticism within the legal community. See, e.g., Thea Johnson, 2023 Plea 

Bargain Task Force Report, American Bar Association, 25 (2023), 

https://www.americanbar.org/content/dam/aba/publications/criminaljustice/plea
19 

-bargain-tf-report.pdf [https://perma.cc/VJ5W-VSQH] (noting that appeal and 

collateral-attack waivers “have nothing to do with trial . . . and can and do lead to 

injustices,” and concluding that such waivers should be presumptively disfavored 

and never allowed with respect to certain fundamental rights).9 

This Court has recognized the value of plea agreements, as well as their 

limitations. Though we invoke general contract principles in interpreting and 

applying plea agreements, we have acknowledged that “plea agreements are not 

ordinary contracts,” Lajeunesse, 85 F.4th at 692, so we “temper the application of 

ordinary contract principles with ‘special due process concerns for fairness and 

the adequacy of procedural safeguards,’” United States v. Granik, 386 F.3d 404, 413 

(2d Cir. 2004) (quoting United States v. Altro, 180 F.3d 372, 375 (2d Cir. 1999)). 

Moreover, we recognize that even within a traditional contract law framework, 

plea agreements “are subject to the public policy constraints that bear upon the 

9 In August 2023, the ABA House of Delegates formally adopted the principles included in 

the report. See Criminal Justice Section, Am. Bar Ass’n, Resolution 502 (Aug. 2023), 

https://www.americanbar.org/content/dam/aba/administrative/news/2023/am-res/502.pdf

[https://perma.cc/2JL2-D7YM].
20 

enforcement of other kinds of contracts.” United States v. Yemitan, 70 F.3d 746, 748 

(2d Cir. 1995). 

Consistent with this history, we should be cautious about expanding the 

applicability of appeal waivers to circumstances previously beyond their reach—

such as challenges to pleas entered without an understanding of the essential 

elements of a crime. The court’s responsibility to ensure that people are not 

convicted of crimes they did not commit outweighs those individuals’ freedom of 

contract. Cf. North Carolina v. Alford, 400 U.S. 25, 37–38 (1970) (requiring a court to 

assure itself that an adequate factual basis supported a guilty plea where the 

defendant maintained his innocence but chose to enter into a plea agreement). 

Simply put, consent and contract do not override innocence and guilt as the critical 

touchstones in our criminal justice system. 

Though the specific question in this case involves appeal and collateralattack waivers, it more broadly tests the limits of the contract-based model of 

criminal justice. In my view, our criminal justice system is more than just a 

marketplace in which the medium of exchange is an accused’s liberty, and courts 

have a role to play beyond ensuring an efficient marketplace.

For the above reasons, I respectfully dissent from the Court’s denial of 

rehearing en banc.