NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 21-2816 

______________

UNITED STATES OF AMERICA

v.

TIMOTHY KEYES,

Appellant

Appeal from the United States District Court

for the District of Delaware

(District Court No. 1-18-cr-00017-001)

District Judge: Honorable Leonard P. Stark

Submitted Under Third Circuit LAR 34.1(a) 

on January 20, 2023

Before: AMBRO, PORTER, and FREEMAN, Circuit Judges

(Opinion Filed: February 7, 2023)

OPINION*

* This disposition is not an opinion of the full Court and under I.O.P. 5.7 does not constitute

binding precedent.
2

AMBRO, Circuit Judge.

On March 5, 2018, Timothy Keyes was charged in a two-count information 

alleging possession of firearm by a prohibited person in violation of 18 U.S.C. 

§§ 922(g)(1) and 924(a)(2) and possession of heroin with intent to distribute in violation

of 21 U.S.C. §§ 841(a)(1) and (b)(1)(c). 

In April 2018, the District Court held a plea hearing that did not go smoothly. 

After Keyes admitted he was receiving treatment for oxycodone and heroin abuse, he 

testified that he had taken neither substance in the past 48 hours. When the Court asked 

him whether he understood what was happening at the hearing, Keyes replied in the 

affirmative but the Court noted he “look[s] a little unsure.” The hearing continued after 

Keyes’s assurances. 

But when the Court asked whether Keyes was familiar with the information to 

which he was pleading guilty, he admitted he was not and asked for time to review it with 

his lawyer. The hearing recessed for 30 minutes. After the hearing resumed, Keyes 

affirmed his intention to enter a guilty plea. The Government’s counsel then summarized 

the plea agreement. But when Keyes had an opportunity to respond, he stated:

It’s just a lot of stuff there that was read that I didn’t, didn’t read. So I mean 

even with the recess that we just had, it’s just a lot of the forfeitures, and I 

expect this and I expect that. I don’t, I really don’t understand it. I’ll be 

honest with you. I mean we meet in the hallway and we talked and he went 

over a few things with me, but there is just a lot of things in here that I just 

don’t understand, your Honor. A130–31.
3

The Court then explained the plea agreement to Keyes, who objected to admitting 

the elements of the offense. After a 20-minute recess, during which Keyes conferred 

with his counsel, he withdrew his objection and entered a guilty plea. 

Keyes’s plea agreement contained the following provision:

The defendant knows that he has, and voluntarily and expressly waives, the 

right to file any appeal, any collateral attack, or any other writ or motion after 

sentencing – including, but not limited to, an appeal under 18 U.S.C. § 3742 

or 28 U.S.C. § 1291, or a motion under 28 U.S.C. § 2255. Notwithstanding 

the foregoing, the defendant reserves his right (1) to file an appeal or other 

collateral motion on the grounds that he received ineffective assistance of 

counsel; and (2) to appeal his sentence if: (a) the government appeals from 

the sentence, (b) the defendant’s sentence exceeds the statutory maximum 

for the offense set forth in the United States Code, or (c) the sentence 

unreasonably exceeds the Sentencing Guidelines range determined by the 

District Court in applying the United States Sentencing Guidelines. A26.

Keyes sought to withdraw his guilty plea one month later. The Court denied that

motion after finding Keyes failed to make a credible showing that he is innocent of either 

count, did not present strong reasons for withdrawing his plea, and that his plea was made 

knowingly, intelligently, and voluntarily. Keyes appealed to us.

1

II

We will affirm because it is not a miscarriage of justice to hold Keyes to an 

appellate provision waiver he knowingly and voluntarily accepted. See United States v. 

Wilson, 429 F.3d 455, 460 (3d Cir. 2005) (declining to review merits of appeal barred by 

plea-waiver provision because enforcing the waiver will not result in a miscarriage of 

1 The District Court had jurisdiction under 18 U.S.C. § 3231 and we have 

jurisdiction under § 1291. 
4

justice). Even if we were to overlook this waiver, we would hold that the District Court 

did not abuse its discretion in denying Keyes’s motion to withdraw his guilty plea.

We are satisfied that Keyes knowingly and voluntarily entered his guilty plea 

because his decision was made deliberately.2 Every time Keyes had an issue at the plea 

hearing, he conferred with counsel. And after doing so, he represented that he was 

satisfied and ultimately decided to enter a guilty plea. “Solemn declarations in open 

court carry a strong presumption of verity,” and Keyes has not overcome that 

presumption. Blackledge v. Allison, 431 U.S. 63, 74 (1977). We are also unpersuaded

that he was under the influence of narcotics at the hearing. He therefore must be held to 

the terms of his plea agreement.

The plain text of Keyes’s plea agreement provides that he waived the right to file 

this appeal, and we reject his contention that his appeal falls outside the appellate waiver 

provision because the District Court’s colloquy altered its terms.3 We recognize that “a 

statement made by the [] court during the colloquy can create ambiguity where none 

exists in the plain text of the plea agreement.” See United States v. Saferstein, 673 F.3d 

237, 243 (3d Cir. 2012). But we find no such ambiguity here. The Court read the 

appellate waiver provision to Keyes and then emphasized that it limited his ability to 

appeal his sentence. The Court’s emphasis on one aspect of the appellate waiver did not 

2 We review the validity of a waiver of appellate rights de novo. See United States 

v. Khattak, 273 F.3d 557, 560 (3d Cir. 2001).

3

“We exercise plenary review in deciding whether an issue raised by a defendant 

falls within the scope of an appellate waiver in his plea agreement.” United States v. 

Goodson, 544 F.3d 529, 537 n.6 (3d Cir. 2008). 
5

render the provision ambiguous or limit its scope. See United States v. Castro, 704 F.3d 

125, 137 (3d Cir. 2013) (rejecting appellant’s argument that “a district court’s emphases 

and omissions during a plea colloquy may [] alter the defendant’s understanding of the 

plain terms of the plea agreement.”).

We will therefore enforce the agreement unless doing so would result in a 

miscarriage of justice. See United States v. Price, 558 F.3d 270, 283 (3d Cir. 2009). We

know of no compelling circumstances that suggest it would be a miscarriage of justice to 

enforce an agreement Keyes knowingly and voluntarily entered. We therefore will affirm 

because the plea agreement bars this appeal.

Our disposition would remain the same even if we were to consider the merits of 

Keyes’s appeal. To withdraw his guilty plea, he was required to show “a fair and just 

reason for requesting the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). The District Court 

denied his motion after considering three factors: “(1) whether the defendant asserts his 

innocence; (2) the strength of the defendant’s reasons for withdrawing the plea; and (3) 

whether the government would be prejudiced by the withdrawal.” United States. v. 

Jones, 336 F.3d 245, 252 (3d Cir. 2003).

4

 We agree with the District Court that Keyes 

did not provide a sufficient reason for the withdrawal because his assertion of innocence 

is not credible, see id. at 252 (requiring that assertions of innocence be “buttressed by 

facts in the record that support a claimed defense”), and we have already rejected his 

proffered reason for withdrawing the guilty plea (that it was not entered knowingly or 

4 We review the decision to deny Keyes’s motion for withdrawal of a guilty plea for 

abuse of discretion. See United States v. Wilson, 429 F.3d 455, 458 (3d Cir. 2005).
6

voluntarily). We therefore hold the District Court did not abuse its discretion in denying 

Keyes’s motion.