United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 10-3365

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Western District of Missouri.

Randal G. Jennings, *

*

Appellant. *

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Submitted: September 23, 2011

 Filed: December 2, 2011

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Before WOLLMAN, BYE, and SHEPHERD, Circuit Judges.

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WOLLMAN, Circuit Judge.

Under a written plea agreement containing an appeal waiver, Randal Jennings

pleaded guilty to commercial sex trafficking of children, in violation of 18 U.S.C.

§§ 1591 and 1594(a). The district court1 accepted the guilty plea and sentenced

Jennings to 262 months in prison, 15 years of supervised release, and a $100 special

assessment. The district court also issued a separate order denying the government’s

restitution request.

1

The Honorable David Gregory Kays, United States District Judge for the

Western District of Missouri.
Jennings appealed, and the government moved to dismiss Jennings’s appeal

based on the terms of the appeal waiver. Jennings opposed the motion, arguing that

an exception to the appeal waiver applied. We now grant the motion to dismiss the

appeal.

I.

On February 5, 2009, Jennings was charged in a thirteen-count federal

indictment with commercial sex trafficking of children, obtaining children for

producing child pornography, inducing children to engage in sexually explicit conduct

for production of visual depictions, transporting children in interstate commerce for

prostitution, and advertising and publishing a notice of images involving the sexual

exploitation of children. On July 16, 2009, as part of a plea agreement, Jennings

entered a guilty plea to a one-count information charging him with commercial sex

trafficking of children.

Jennings’s plea agreement included a conviction appeal waiver and a sentencing

appeal waiver. In the conviction appeal waiver, Jennings acknowledged that by

pleading guilty under the plea agreement he “waive[d] his right to appeal or

collaterally attack a finding of guilt” following acceptance of the agreement. Plea

Agreement at 12. In the sentencing appeal waiver, he “expressly waive[d] his right

to appeal his sentence, directly or collaterally, on any ground except claims of (1)

ineffective assistance of counsel; (2) prosecutorial misconduct; or (3) an illegal

sentence.”2

 Id. Among the exceptions to this waiver was the following:

2

The plea agreement defined “illegal sentence” as including “a sentence

imposed in excess of the statutory maximum, but does not include less serious

sentencing errors, such as a misapplication of the Sentencing Guidelines, an abuse of

discretion, or the imposition of an unreasonable sentence.” Plea Agreement at 12.

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[I]f the United States exercises its right to appeal the sentence imposed

as authorized by 18 U.S.C. § 3742(b), the defendant is released from this

waiver and may, as part of the Government’s appeal, cross-appeal his

sentence as authorized by 18 U.S.C. § 3742(a) with respect to any issues

that have not been stipulated to or agreed upon in this agreement.

Plea Agreement at 12. Jennings acknowledged at his change of plea hearing that he

understood the waiver of his appellate rights.

Between the district court’s acceptance of Jennings’s guilty plea and imposition

of sentence, Jennings filed three motions to withdraw his guilty plea, one of which

contended that he “acted hastily” and received ineffective assistance of counsel in

connection with entry of the plea. Jennings’s Br. at 18. The district court denied all

three motions, and Jennings was sentenced on October 6, 2010.

Jennings, though represented by counsel, filed a pro se notice of appeal in a

letter dated October 11, 2010. Jennings’s attorney filed a notice of appeal on October

22, 2010. Earlier on October 22, 2010, the government filed a notice of appeal,

apparently based on the restitution order. The government subsequently filed a

motion to dismiss its notice of appeal, which we granted on January 25, 2011.

II.

“As a general rule, a defendant is allowed to waive appellate rights.” United

States v. Andis, 333 F.3d 886, 889 (8th Cir. 2003) (en banc). “When reviewing a

purported waiver, we must confirm that the appeal falls within the scope of the waiver

and that both the waiver and plea agreement were entered into knowingly and

voluntarily.” Id. at 889-90. “Even when these conditions are met, however, we will

not enforce a waiver where to do so would result in a miscarriage of justice.” Id. at

890.

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Jennings does not dispute that his waiver and plea agreement were knowingly

and voluntarily entered. Prior to concluding that Jennings knowingly and voluntarily

entered into the plea agreement, the district court thoroughly questioned Jennings

about his decision to enter into the agreement and waive his appellate rights. See id.

at 890-91 (“One important way a district court can help ensure that a plea agreement

and corresponding waiver are entered into knowingly and voluntarily is to properly

question a defendant about his or her decision to enter that agreement and waive the

right to appeal.”). The issue, therefore, is whether Jennings’s appeal falls within the

scope of the waiver and, if so, whether an exception to the waiver applies.

We conclude that all of Jennings’s claims fall within the scope of his appeal

waiver, and we reject his contention that the above-quoted exception to the sentencing

appeal waiver applies. He argues that once the government filed its notice of appeal

of the district court’s restitution order, “the Government ha[d] manifest[ed] its intent

to appeal,” and therefore he “is not bound by the appeal waiver contained in the

written plea agreement.” Jennings’s Br. at 12.

We disagree with Jennings’s interpretation of the sentencing appeal waiver. 

The plea agreement provided that if the government appealed the sentence, Jennings

was entitled to cross-appeal his sentence. Here, Jennings was the first to file a notice

of appeal, thus making him the appellant. See Fed. R. App. P. 28.1(b) (“The party

who files a notice of appeal first is the appellant for the purposes of this rule and Rules

30 and 34”). The government became the cross-appellant when it subsequently filed

its notice of appeal,3

 see id., but the government never perfected its cross-appeal by

3

The dissent correctly notes that 18 U.S.C. § 3742(b) begins by stating that

“[t]he Government may file a notice of appeal in the district court for review of an

otherwise final sentence[.]” The statute proceeds, however, to state that “[t]he

Government may not further prosecute such appeal without the personal approval of

the Attorney General, the Solicitor General, or a deputy solicitor general designated

by the Solicitor General.” 18 U.S.C. § 3742(b). Thus, a full reading of § 3742(b)

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filing a brief in support thereof. See Fed. R. App. P. 28.1(c) (“In a case involving a

cross-appeal . . . [t]he appellee must file a principal brief in the cross-appeal and must,

in the same brief, respond to the principal brief in the appeal”). The government later

successfully moved to dismiss its cross-appeal, leaving only Jennings’s direct appeal

pending. Accordingly, absent a pending appeal by the government, Jennings was left

without anything to cross-appeal.

We also conclude that enforcing the appeal waiver would not result in a

miscarriage of justice. “[T]his exception is a narrow one. . . .” Andis, 333 F.3d at

891. Although we have not provided an exhaustive list of the circumstances that

might constitute a miscarriage of justice, we have recognized that a waiver of

appellate rights does not prohibit the appeal of an illegal sentence, a sentence in

violation of the terms of an agreement, and a claim asserting ineffective assistance of

counsel. Id. Jennings was sentenced to less than the statutory maximum for violation

of 18 U.S.C. §§ 1591 and 1594(a), and his sentence did not violate the terms of the

plea agreement. To the extent that Jennings raises claims based on ineffective

assistance of counsel, we see no reason to depart from “our usual rule requiring such

claims to be raised in a subsequently filed 28 U.S.C. § 2255 proceeding where the

record can be properly developed.” United States v. Weaver, 256. F. App’x 16, 18

(8th Cir. 2007) (citing United States v. Ramirez-Hernandez, 449 F.3d 824, 827 (8th

Cir. 2006)); see also United States v. Hughes, 330 F.3d 1068, 1069 (8th Cir. 2003)

(noting that ineffective assistance claims should be deferred to § 2255 proceedings

unless miscarriage of justice would obviously result or outcome would be inconsistent

with substantial justice). Under the circumstances, requiring Jennings to raise his

clarifies that the government may not exercise its right to appeal absent personal

approval by the Attorney General, Solicitor General, or a deputy Solicitor General. 

The government suggested at oral argument that it either did not pursue or receive 

such approval in this case. This lack of approval is evidenced by the fact that the

government never filed a brief in support of an appeal or otherwise “further

prosecute[d] such appeal” as contemplated by § 3742(b).

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ineffective assistance of counsel claims by way of a § 2255 proceeding would not

result in a miscarriage of justice.

III.

The appeal is dismissed.

BYE, Circuit Judge, concurring in part and dissenting in part.

I concur in the majority’s decision to enforce Jennings’s conviction appeal

waiver. With respect to Jennings’s sentencing appeal waiver, however, I believe the

government unequivocally exercised its right to appeal, thereby permitting Jennings

to cross-appeal his sentence. I therefore respectfully dissent.

“We will enforce a defendant’s appeal waiver against all issues that fall within

the scope of the waiver if the defendant entered the plea agreement and appeal waiver

‘knowingly and voluntarily’ and enforcement of the waiver would not cause a

‘miscarriage of justice.’” United States v. Boroughf, 649 F.3d 887, 890 (8th Cir.

2011) (quoting United States v. Scott, 627 F.3d 702, 704 (8th Cir. 2010)). “Plea

agreements are contractual in nature and should be interpreted according to general

contract principles.” United States v. Snelson, 555 F.3d 681, 685 (8th Cir. 2009)

(internal quotation marks and citation omitted). “The government bears the burden

of establishing that the plea agreement clearly and unambiguously waives the

defendant’s right to appeal, and ambiguities in the agreement are construed against the

government.” United States v. Azure, 571 F.3d 769, 772 (8th Cir. 2009); see also

United States v. Andis, 333 F.3d 886, 890 (8th Cir. 2003) (en banc) (“Plea agreements

will be strictly construed and any ambiguities in these agreements will be read against

the Government and in favor of a defendant’s appellate rights.”).

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Employing these principles here, I find determinative the following exception

contained in Jennings’s appeal waiver:

[I]f the United States exercises its right to appeal the sentence imposed

as authorized by 18 U.S.C. § 3742(b), the defendant is released from this

waiver and may, as part of the Government’s appeal, cross-appeal his

sentence as authorized by 18 U.S.C. § 3742(a) with respect to any issues

that have not been stipulated to or agreed upon in this agreement.

Plea Agreement at 12. Following the district court’s denial of $886,650 in restitution,

the government filed a notice of appeal. Nonetheless, the government contends it did

not “fully perfect” its appeal because it successfully dismissed the appeal three months

later, and thus Jennings did not have the right to cross-appeal his sentence.

The government’s argument is not supported by a plain reading of the appeal

waiver, which expressly invokes 18 U.S.C. § 3742(b) as the method by which the

government may “exercise[] its right to appeal the sentence.” Id. That statute states,

“[t]he Government may file a notice of appeal in the district court for review of an

otherwise final sentence[.]” 18 U.S.C. § 3742(b) (emphasis added). Notably, the

statute does not require the government to “perfect” its appeal, but only to file a notice

of appeal—which undisputably occurred in this case. Accordingly, the government’s

dismissal of its appeal three months later does not operate to preclude Jennings from

cross-appealing his sentence.4

4

I disagree with the majority’s reliance on the provision in § 3742 requiring the

government to receive the personal approval of the Attorney General, Solicitor

General, or a deputy Solicitor General, to further prosecute its appeal. As an initial

matter, the language of this provision contemplates that the government has already

taken its appeal after filing a notice of appeal, as it states “[t]he Government may not

further prosecute such appeal” without obtaining approval. 18 U.S.C. § 3742(b)

(emphasis added). Indeed, the concept that an appeal is taken by filing a notice of

appeal is plainly confirmed by Rule 3(a)(1) of the Federal Rules of Appellate

Procedure, which states “an appeal permitted by law as of right from a district court

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Moreover, I am unpersuaded by the majority’s reliance on the slight

discrepancy among the timing of the notices of appeal. As the majority notes,

Jennings filed a pro se notice of appeal on October 11, 2010. Eleven days later, the

government filed its notice of appeal, and later that day, Jennings’s attorney filed a

notice of appeal. The majority neglects to parse out the substance behind these notices

of appeal, however. Namely, Jennings’s pro se notice of appeal was filed on the

grounds of ineffective assistance of counsel—an issue explicitly excepted from the

appeal waiver. See Plea Agreement at 12 (“The defendant expressly waives his right

to appeal his sentence, directly or collaterally, on any ground except claims of (1)

ineffective assistance of counsel; (2) prosecutorial misconduct; or (3) an illegal

sentence.”) (emphasis added). Therefore, Jennings acted fully within the confines of

the plea agreement by being the first to file a notice of appeal. The government’s later

notice of appeal concerned the district court’s denial of restitution—a sentencing

issue—and Jennings’s counsel accordingly filed a subsequent cross-appeal on the

sentencing issues. For the reasons set forth above, this cross-appeal on the sentencing

to a court of appeals may be taken only by filing a notice of appeal with the district

clerk within the time allowed by Rule 4.” Rule 3(a)(2) continues, “[a]n appellant’s

failure to take any step other than the timely filing of a notice of appeal does not affect

the validity of the appeal, but is ground only for the court of appeals to act as it

considers appropriate, including dismissing the appeal.” In sum, the plea agreement,

§ 3742(b), and Rule 3 of the Federal Rules of Appellate Procedure foreclose the

government’s argument with respect to “perfecting” its appeal.

Moreover, even if approval is required, there is no indication the government

did not have such approval, as the government’s motion to dismiss only cited its

continued belief that its cross-appeal was meritorious. Even at oral argument, the

government did not make any representations regarding the lack of approval in this

particular case—it only referenced its general internal policy regarding filing

“protective” notices of appeal in many cases. It bears repeating that the government

has the burden of establishing Jennings clearly and unambiguously waived his rights;

Jennings does not have the burden to show the government received the appropriate

approval to further prosecute its appeal. Azure, 571 F.3d at 772.

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issues was permitted under the separate exception in the plea agreement. Therefore,

I would reach the merits of Jennings’s sentencing arguments.

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