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 9 th 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)

____________________________________ D EREK C OOK , C HAD E DWARDS , B RIAN L ATULIPE , A NSON E DWARDS , B RYAN H ERNE , K AIENTANORON L. S WAMP , Petitioners

- Appellants,

v.U NITED S TATES OF A MERICA 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 P é rez, 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 , concur s 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, Clerk1 R AYMOND J. L OHIER , J R ., Circuit J udge , joined by M YRNA P ÉREZ , Circuit Judge , concurring in the order denying rehearing in banc : During the in banc poll, t he 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, w e 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 moot ness . 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 recognize s miscarriage

- of

- justice exception s 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 cold2 comfort to the petitioners , but the broader principle s 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 t he 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 w here the
invalidated conviction st ands 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 )

. T he panel’s decision does not rul e 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 th e 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 knowi ng and voluntary

. T hey 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. T he 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 (4th4 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.R ICHARD J. S ULLIVAN , Circuit Judge , joined by D EBRA A NN L IVINGSTON , Chief Judge , and J OSEPH F. B IANCO , M ICHAEL H. P ARK , W ILLIAM J. N ARDINI , and S TEVEN J. M ENASHI , Circuit Judge s , concurring in the order den ying 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 ar ose from the appellants’ collateral attack s 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, t he 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 stipulat ed to a base offense level from which the government would recommend certain downward adjustment s. 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, n otwithstanding the appeal and collateral attack waivers contained in their plea agreements, the appellants brought petitions under 28
U.S.C. § 2255 , arguing that the ir section 924(c) and (j) convictions – but not their Hobbs Act robbery convictions – should be vacated because (1) the residual clause3 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 unconstitutional ly
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

. S ee 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, t he 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’ W aivers W ere K nowing and V oluntary and E xtended to F uture C hanges in the L aw Whether or N ot S pecifically C ontemplated at the T ime of T heir G uilty P leas In pleading guilty, e ach 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. I n exchange for consideration – namely, the government’s agreement to forgo additional charg es and make certain stipulations that4 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 c onsideration 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 T hat th is decision sometimes turns out to be improvident – because , for example, a subsequent change in law materializes and creat es 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. “ D efendants 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. 20 2 3) (alterations and cit ations 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 th e se 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 do es 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 challenge s as ones based on Federal Rule of C riminal
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 the m that the residual clause of section 924(c)(3)(B) was unconstitutionally vague and that7 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 re casting the appellants’ Davis arguments as assertions of Rule 11 error . But t he appellants were represented on appeal by competent counsel who did not even cite Balde or Lloy d

. 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 would8 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 the m that section 924(c)(3)(B) was unconstitutionally vague , that argument still would have failed. In fact, t he 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 , n either Lloyd n or Balde stand s 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 re troactively 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 deci sion in United States v. Booker , 543 U.S. 220 (2005) – which render ed the Sentencing Guidelines advisory – to argue that “ his mistaken belief, shared by the government9 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 un related 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 affect ed defendant’s substantial rights)

. And while the panel i n 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 , t he10 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 wa iver ( 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 1 37

. 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 t he defendant might conceivably be giving up by pleading guilty

. While the dissent insists that Rule 11 challenges are threshold arguments11 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. I t 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 a n 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 challenge s wo uld have
fail ed for any number of additional reasons . For starters, t he appellants did not
raise Rule 11 argument s based on Davis w hen pleading guilty , on direct appeal, or in their section 2255 petitions to the district court . The appellants’ new Rule 11 argument s 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’ argument s 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 ’ motivation s to plead guilty to
limit their criminal exposure would have been any different had Davis been decided before their pleas , s ee United States v. Dussard , 967 F.3d 149, 15 8 (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 de aler” was enough to support a conviction under section 924(c) as a narcotics offense – even though the predicate offense to13 which Dussard had pleaded guilty was conspiracy to commit Hobbs Act robbery.
967 F.3d at 15 6–5 7. 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 reasone d 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.
G iven 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 prevaile d 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 challenge s (repackaged as Rule 11 challenge s), just to determine whether the appellants’ collateral attack waivers bar14 them from raising Davis challenges , indicates that something is wrong with the dissent’s approach

. Separately, t he 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 al l . Instead, the case turned on whether the petitioner had procedurally defaulted his section 2255 challeng e 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 61 6 (quoting Bailey v. United
States , 516 U.S. 137, 144 (1995))

. Although Bousley relied on this post

- plea precedent to a rgue that the district court had “misinformed him as to the elements
of a [section] 924(c) (1) offense ,” i d. at 618 , t he Supreme Court did not vacate Bousley’s convictio n or even consider his argument on the merits. I t merely
concluded that Bousley’s procedural default b arred his claim for relief , which
could be advance d 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. C onsideration of th e exceptions to procedural default was necessary only because the Supreme Court did not view15 the error that Bousley asserted to be unwaivable . T o the contrary, the Supreme
Court explicitly noted th at “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 st atus 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 challenge s based on post

- plea change s 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, t he dissent ’s assert ion that “ the panel’s legal analysis clashes with
the Supreme Court’s and this Circuit’s law ” is wrong. Dissent at 1. A s explained above, there is no conflict between the panel decision and Balde

. Nor does the16 panel decision conflict with Bousley

. G iven that the vast majority of our sister
circuits have concluded that a collateral attack waiver is enforceable to bar a Davis challeng e, and given that the Supreme Court has not resolved the heavily one

sided 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, 136 7– 70 (11th Cir. 2022); Portis v. United States , 33 F.4th 331, 33 4– 39 (6th Cir. 2022); United States v. Goodall , 21 F.4th 555, 56 1– 65 (9th Cir. 2021); Oliver v. United States , 951 F.3d 841, 84 5–4 8 (7th Cir. 2020).
IV. The Miscarriage of Justice Framework I s the Appropriate Safety Valve for Collateral Attack Waivers F ootnote 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 under17 s[ection] 2255.” Davis , 417 U.S. at 346

– 47 (alterations and internal quotation marks omitted).
T he 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 a n 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’ reque st for a Davis -generated windfall after they ha d 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.N ATHAN , 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.
M y 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 n ot 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, keep ing you in prison for a non - existent crime? As Judge Robinso n notes, multiple circuits havesplit 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 no t 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 waiv ers are therefore unenforceable. The panel’s opinion seemingly reache d 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 (2dCir. 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 Bousl ey , 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 B ETH R OBINSON , Circuit Judge , joined by E UNICE C. L EE and S ARAH A. L. M ERRIAM , 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 footn ote 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 fa r 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 ne i ther raised by the parties n or 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 C ircuit’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
T he 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 of2 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 C ourt to decide
“whether a collateral

- attack waiver would be unenforceable in the event of a ‘complete miscarriage of justice , ’” and identifying alternat iv e 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.4 th 679,
692

– 94 (2d Cir. 2023) ( declining to enforce an appeal waiver because the district
court’s failure to allow allo cution during sentencing implicated serious public policy concerns)

. That distinguishes the panel’s opinion from those of other3 c ircuits 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 un knowing and in voluntary. Bousley v. United States , 523 U.S. 614, 619 (1998). Th at makes sense; the p etitioners
did not expressly argue that the ir guilty plea s 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 Petition ers’ 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) ). B ecause 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 b y t he 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. B ut the objectionable reasoning permeates th is 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) ). This5 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 li ke 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.
S tart 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 the6 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 61 6– 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 tra fficking occurred.’” Id

. at 617 (citations omitted). The district court dismissed Bousley’s petition , and he appealed to the Eighth Circuit. Id. at 617. W hile 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 require d “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 principle s 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 factor8 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 petitioner s 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 plea9 agreements”). S ee 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 it s 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 c ourt 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 decide d Rehaif v. United States , 588 U.S. 225 (2019) , the case identifying the mens rea element for the felon

- in

-10 decided th at 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
g overnment 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. I mportantly, 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. a t 509. He had been convicted of multiple felonies, and never disputed that fact. Id

. And h e 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 n ot 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 Rehai f- 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) ).
T he 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 f irearm. But in interpreting the statute,12 Rehaif instru c ts us about what § 922(g)(5)(A) has always m eant

. . . . 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.
B ecause 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, “ i t 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 one13 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 C ircuit ’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 ro b bery 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, i f any thing , 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 lead s 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 th ese 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 “crime s of15 violence ”— can very well render a guilty plea unknowing and involuntary and
thus any appeal or collateral

- attack waiver unenforceable. 5 Likewise, t he 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 ) . Th e panel’s discussion wrongly suggests that a collateral

- attack waiver in a plea agreement overrides the argument that the plea agreement itself was un knowing
and in voluntary 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.4 th 1363, 1368 (11 th Cir. 2022) ; Portis v. United States , 33 F.4th 331, 33 6 (6th Cir. 2022) ; United States v. Goodall , 21 F.4th 555, 562 (9 th 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

w e would find ourselves on both sides of a circuit split. See Balde , 943 F.3d at 95 ; United States v. McKinney , 60 F.4 th 188, 191

– 93 (4th Cir. 2023) ( declining to enforce petitioner’s appeal waiver where he showed his § 924(c) conviction rest ed on an invalid predicate , he made “a cognizable claim of actual innocence,” and barring the challenge would be a miscarriage of justice (citation omitted) ).
E ven an attentive reader who scour s footnotes could be left with the
mis impression that the Cook opinion holds generally that challenges to § 924(c)

6 Like the panel here, t he court in Oliver v. United States did conclude, among other things, that enforcing collateral

- attack waiver s 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 (7 th Cir. 2020).17 convictions resting on invalid predicate acts are barred by appeal or collateral

attack waivers

— a conclusion that would be squarely in conflict with our decision
in Balde

. The P anel C oncurrence makes clear that the panel did not intend to so hold, see above at 9– 10, 15

– 16 , and that’s a good thing. B ut 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, t his 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 . R ecent 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 as sertions 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

- and

sourcebooks/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. A ppeal
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 sampl ing 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/plea19 - 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 Stat es v. Altro , 1 80 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, A m. B ar A ss’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 collateral

attack 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

.