United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 6, 2017 Decided August 17, 2018

No. 16-3005

IN RE: SEALED CASE

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Consolidated with No. 16-3024

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Appeal from the United States District Court 

for the District of Columbia

(No. 1:10-cr-00172-1)

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Before: SRINIVASAN and WILKINS, Circuit Judges, and

SENTELLE, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge SRINIVASAN.

SRINIVASAN, Circuit Judge: Often, when a criminal 

defendant agrees to plead guilty, he also agrees to waive his 

right to take an appeal or seek collateral review after he is 

sentenced. The appeal waiver generally precludes him from 

bringing an appeal on any as-yet-unknown claim that might 

arise in his upcoming sentencing proceedings. So, for instance, 

if the defendant comes to believe that the trial court committed 

an error in determining his sentence, his appeal waiver 

generally would bar him from appealing on that ground.

But what if the claim the defendant wishes to raise on 

appeal concerns, not an alleged error committed by the trial 
2

court at sentencing, but instead the performance of the 

defendant’s own attorney at sentencing? Suppose the 

attorney’s performance in the sentencing proceeding is so poor

that it violates the defendant’s Sixth Amendment right to 

counsel. Does a defendant’s generic appeal waiver encompass 

a claim that he received ineffective assistance of counsel in 

connection with his sentencing?

We conclude that a generic appeal waiver does not affect

a defendant’s ability to appeal his sentence on yet-to-arise 

ineffective-assistance-of-counsel grounds. The appellant in 

this case executed a generic appeal waiver, with no explicit 

waiver of his right to appeal on ineffective-assistance-ofcounsel grounds. The appeal waiver thus does not prevent him 

from appealing on the basis that he received ineffective 

assistance of counsel in his sentencing proceeding. As to the 

ultimate merits of appellant’s ineffective-assistance claims, we 

cannot conclusively resolve them on the record before us. In 

those circumstances, we ordinarily remand the claims to the 

district court for further proceedings, and we do so here.

I.

Appellant pleaded guilty to one count of conspiracy to 

distribute five kilograms or more of cocaine on board an 

aircraft registered in the United States and one count of 

conspiracy to distribute and possess with intent to distribute 

1,000 kilograms or more of marijuana. As part of the plea 

agreement, appellant “waive[d] any and all appeals and 

collateral attacks in this case and agree[d] that this case [would] 

become final once he ha[d] been sentenced.” Plea Agreement 

¶ 24.

At the sentencing hearing, the district court first sought to 

determine the appropriate sentencing-guidelines range. The 
3

Presentence Report recommended a three-level increase in 

appellant’s base offense level based on his major role in a drug 

trafficking conspiracy. See U.S.S.G. § 3B1.1(b) (2009). 

Appellant’s counsel argued against the adjustment, contending 

that appellant was not a manager or supervisor of the 

conspiracy. The district court declined to adjust appellant’s 

base offense level based on his role in the conspiracy. The 

court determined that the appropriate guidelines range was 135 

to 168 months of imprisonment.

The district court then set out various considerations 

guiding its determination of appellant’s sentence. One 

consideration was that the court considered appellant neither a 

major participant nor a minor participant in the conspiracy. 

The court ultimately decided to sentence appellant to 120 

months of imprisonment on each of the two counts of 

conviction, with the sentences to run concurrently.

II.

Appellant seeks to appeal his sentence on the ground that 

he received ineffective assistance of counsel at sentencing in 

various respects. Among appellant’s ineffective-assistance 

arguments, he contends that his counsel should have argued for 

a downward adjustment based on his minor role in the 

drug-trafficking conspiracy. 

The government argues that, by executing a general appeal 

waiver, appellant relinquished his right to appeal his sentence 

on grounds of ineffective assistance of counsel. We disagree. 

We conclude that appellant’s generic appeal waiver did not 

encompass a claim that his attorney provided him 

constitutionally ineffective assistance at sentencing. While 

appellant thus can raise his ineffective-assistance claims in this

appeal, we cannot definitively resolve the claims on the 
4

existing record. We therefore remand the claims to the district 

court in accordance with our customary practice.

A.

We first consider the implications of appellant’s generic

appeal waiver for his ability to appeal on the ground that he 

received ineffective assistance of counsel at sentencing. In 

addressing that issue, we begin with an overview of the 

principles governing the enforceability of appeal waivers and 

then apply those principles to the specific context of

ineffective-assistance-of-counsel claims.

1.

In United States v. Guillen, this court held that a defendant 

can validly waive her right to appeal a sentence that has not yet 

been imposed, as long as her decision is “knowing, intelligent, 

and voluntary.” 561 F.3d 527, 529-30 (D.C. Cir. 2009). We 

acknowledged that such a waiver presents distinct 

considerations because it is an “anticipatory waiver—that is, 

one made before the defendant knows what the sentence will

be.” Id. at 529. But an “anticipatory waiver” nonetheless 

meets the condition that it be “a knowing waiver if the 

defendant is aware of and understands the risks involved in his 

decision.” Id. Therefore, we explained, if “the record shows 

that the defendant knows what he is doing and his choice is 

made with eyes open, then the Court will enforce an 

anticipatory waiver” of the right to appeal a sentence. Id. at 

529-30 (formatting modified and citation omitted).

As a general matter, “an allegation that the sentencing 

judge misapplied the Sentencing Guidelines or abused his or 

her discretion is not subject to appeal in the face of a valid 

appeal waiver.” United States v. Adams, 780 F.3d 1182, 1184 
5

(D.C. Cir. 2015) (quoting United States v. Andis, 333 F.3d 886, 

892 (8th Cir. 2003) (en banc)). Consistent with that 

understanding, we have held that an appeal waiver barred a 

defendant from appealing her sentence on the grounds that the 

district court: imposed a substantively unreasonable sentence, 

id. at 1183; erred in declining to permit the defendant to 

introduce certain evidence at sentencing or in limiting crossexamination of the government’s sentencing witnesses, id. at 

1183-84; or abused its discretion in denying a downward 

variance from the sentencing guidelines range, United States v. 

Ortega-Hernandez, 804 F.3d 447, 451 (D.C. Cir. 2015). 

Enforcing an appeal waiver in such circumstances “serves 

the important function of resolving a criminal case swiftly and 

finally.” United States v. Hunt, 843 F.3d 1022, 1027 (D.C. Cir. 

2016). And allowing a defendant to waive his right to appeal 

his yet-to-be-imposed sentence also “improves the defendant’s 

bargaining position and increases the probability he will reach 

a satisfactory plea agreement with the Government.” Guillen, 

561 F.3d at 530.

But while an appeal waiver is generally enforceable if the 

defendant has the requisite awareness and understanding of 

“the risks involved in his decision,” id. at 529, a generic appeal 

waiver does not establish a defendant’s acceptance of every

“defect or error that may be thrust upon him by either an 

ineffective attorney or an errant sentencing court,” id. at 530. 

“Most obvious,” we have explained, “a waiver should not be 

enforced insofar as the defendant makes a colorable claim he 

received ineffective assistance of counsel in agreeing to the 

waiver” in the first place. Id. If the claim has merit, the 

defendant would not have “understood the consequences of his 

waiver.” Id. “Nor should a waiver be enforced if the 

sentencing court’s failure in some material way to follow a 

prescribed sentencing procedure results in a miscarriage of 
6

justice.” Id. at 531. That would be the case if, for example, the 

sentence “is unlawful because it exceeds the statutory 

maximum” or because it is “colorably alleged to rest upon a 

constitutionally impermissible factor, such as the defendant’s 

race or religion.” Id.

In addition, “we will not bar the door to a criminal 

defendant’s appeal if his waiver only arguably or ambiguously 

forecloses his claims.” Hunt, 843 F.3d at 1027. Applying that 

understanding, we declined to construe a defendant’s general 

waiver of the right to appeal a sentence to preclude him from 

appealing on a claim that the district court erred in imposing a 

particular condition of supervised release—viz., a condition 

that he stay away from a housing project where he had 

distributed drugs. Id. at 1027-29. While the defendant had 

agreed “to waive the right to appeal the sentence in [the] case, 

including any . . . term of supervised release,” id. at 1027, the 

reference to a “term” of supervised release, we reasoned, was 

sufficiently ambiguous that he “did not necessarily give up the 

right to appeal a condition of such release,” id. at 1028. 

The upshot of our decisions is that a general appeal waiver 

will be understood to preclude appealing a sentence on a host 

of grounds. But a generic waiver of appeal rights will not bar 

every appeal concerning a defendant’s sentence. The central 

question in that regard is whether the defendant is “aware of 

and understands the risks involved in his decision,” Guillen, 

561 F.3d at 529, with any ambiguity about the scope of his 

waiver construed in his favor, Hunt, 843 F.3d at 1027.

2.

Appellant generally “waive[d] any and all appeals and 

collateral attacks in this case and agree[d] that this case [would]

become final once he ha[d] been sentenced.” Plea Agreement 
7

¶ 24. He received no specific information about whether that 

waiver pertains to claims of ineffective assistance of counsel. 

The plea agreement itself does not expressly address the

issue. Nor did the district court do so in its plea colloquy with 

appellant. The district judge asked if appellant understood that 

he was “giving up certain of [his] rights to challenge the 

sentence,” and then quoted the language of the appeal waiver. 

Plea Tr. 23. The judge (understandably) did not advise 

appellant that, by generically giving up his right to appeal, he 

was forgoing any appeal on the ground that his attorney later 

performed so poorly at sentencing that he “was not functioning 

as the ‘counsel’ guaranteed by the Sixth Amendment.” 

Strickland v. Washington, 466 U.S. 668, 687 (1984). As for 

whether appellant’s counsel shed any light on the matter, 

appellant contends that his attorney did not advise him that the

appeal waiver encompassed ineffective-assistance-of-counsel 

claims.

The question, then, is whether the generic language of the

appeal waiver, standing alone, gave appellant the requisite 

awareness and understanding of “the risks involved,” Guillen, 

561 F.3d at 529 —i.e., that if he were to receive constitutionally 

ineffective assistance of counsel at sentencing, he would be 

unable to appeal or seek collateral review on that ground. The 

government submits that Guillen itself settles that a generic 

waiver encompasses claims of ineffective assistance of counsel 

at sentencing. The government points to our observation that a 

waiver will not preclude a “colorable claim” that the defendant 

“received ineffective assistance of counsel in agreeing to the 

waiver.” Guillen, 561 F.3d at 530. But that statement, contrary 

to the government’s assumption, did not suggest that the waiver 

reaches all ineffective-assistance claims beyond those 

concerning the waiver itself. Rather, we merely “mention[ed]

some circumstances” in which there would be no waiver, 
8

identifying the referenced one as the “[m]ost obvious” 

example. Id. (emphasis added). We did not speak to the status 

of other types of ineffective-assistance claims under a generic 

appeal waiver, including claims of ineffective assistance at 

sentencing.

Addressing the matter here, we note at the outset that our 

general duty to construe ambiguities in an appeal waiver in the 

defendant’s favor is especially salient in the context of claims 

alleging ineffective assistance of counsel. Because “[t]he right 

to the effective assistance of counsel at trial is a bedrock 

principle in our justice system,” a person’s “inability to present 

a claim of trial error is of particular concern when the claim is 

one of ineffective assistance of counsel.” Martinez v. Ryan, 

566 U.S. 1, 12 (2012); see also United States v. Taylor, 139 

F.3d 924, 931 (D.C. Cir. 1998) (“The court . . . must ‘indulge 

every reasonable presumption against the waiver of the 

unimpaired assistance of counsel.’” (quoting Campbell v. 

United States, 352 F.2d 359, 361 (D.C. Cir. 1965))). That 

understanding about “the effective assistance of counsel at 

trial” is equally true about ineffective assistance at sentencing.

We cannot conclude that a defendant who executes a 

generic appeal waiver “is aware of and understands the risk[]” 

that, by doing so, she waives any ability to appeal if her counsel 

later provides constitutionally ineffective assistance at 

sentencing. Guillen, 561 F.3d at 529. The key to 

understanding why lies in recognizing that (i) the defendant 

retains her Sixth Amendment right to counsel in the upcoming 

sentencing proceeding, and (ii) unlike other rights, her right to 

counsel can practically be vindicated only through an appeal or 

collateral proceeding.

First, a defendant who generically waives a right to appeal 

of course retains a Sixth Amendment right to counsel at 
9

sentencing. The government has not suggested that appellant 

in this case, or defendants in appellant’s circumstances 

generally, somehow give up the right to counsel by generically 

waiving the right to appeal. And a defendant’s right to 

counsel’s assistance at sentencing necessarily means the right 

to effective counsel. After all, ineffective counsel is no counsel 

at all, as far as the Sixth Amendment is concerned. See 

Strickland, 466 U.S. at 687. 

Second, a defendant can practically vindicate the right to 

the effective assistance of counsel at sentencing only through 

an appeal or collateral proceeding. Ineffective-assistance 

claims differ from other sorts of claims in that respect. With 

other claims that may arise at sentencing, the defendant’s 

counsel can often present the issue in the sentencing court

itself. The defendant thus would retain some ability to air the 

issue even if she waives her ability to take an appeal or seek 

collateral review.

That is not the case with an ineffective-assistance claim 

that arises at sentencing. Counsel cannot be expected to raise 

such an ineffective-assistance claim in the sentencing court

itself: an attorney, to say the least, will be “unlikely to raise an 

ineffective-assistance claim against himself.” Massaro v. 

United States, 538 U.S. 500, 502-03 (2003).

Nor is the defendant herself well positioned to identify her

counsel’s deficient performance and bring it to the sentencing 

court’s attention. We have recognized that counsel fulfills an 

essential function at sentencing by navigating the sentencing 

guidelines and presenting the various considerations that may 

drive the court’s sentencing determination. See United States 

v. Soto, 132 F.3d 56, 59 (D.C. Cir. 1997). Any expectation that 

a defendant would understand and identify her counsel’s 

inadequacies would be tantamount to assigning her principal 
10

responsibility to carry out the representation herself, in the face 

of “the dangers and disadvantages of self-representation.” 

Faretta v. California, 422 U.S. 806, 835 (1975). 

Additionally, “[i]neffective assistance claims often depend 

on evidence outside the trial record.” Martinez, 566 U.S. at 13. 

Claims of ineffective assistance thus frequently require the 

development of a record on collateral review (or on remand 

from an appeal). Those considerations underlay the Supreme 

Court’s decision in Massaro v. United States. 538 U.S. 500. 

There, the Court held that ineffective-assistance claims may be 

brought for the first time on collateral review. It grounded that 

conclusion in its recognition that the trial “record in many cases 

will not disclose the facts necessary to decide either prong of 

the Strickland analysis” governing ineffective-assistance 

claims. Id. at 505. That is all the more reason defendants 

cannot be expected to catch such claims and bring them 

initially in the district court.

For those reasons, the ability to bring an ineffectiveassistance claim on collateral review or on appeal (with the 

possibility of a remand for factual development) is essential to 

vindicating a defendant’s right to counsel at sentencing. It 

follows that a waiver of the right to appeal and collateral 

review, if construed to encompass ineffective-assistance-ofcounsel claims, acts essentially as a waiver of the right to 

counsel at sentencing. 

In that light, the question is whether a defendant who 

retains a right to counsel at sentencing would nevertheless 

understand that, by generically waiving her right to appeal, she 

would essentially give up her ability to preserve her right to 

counsel. We do not think so. Indeed, the defendant might 

agree to an appeal waiver in significant measure precisely 

because of her right to counsel’s assistance at sentencing: even 
11

if she relinquishes her ability to raise a sentencing error on 

appeal, she at least will have her attorney’s assistance in 

identifying any sentencing error to the sentencing court itself, 

in the hope that the sentencing court will correct the error and 

obviate any need for an appeal. The government’s own 

attorney appeared to assume as much in appellant’s sentencing 

hearing, stating: “the defendant agreed to waive his right to 

appeal, I think except for ineffective assistance of counsel.” 

Sentencing Tr. 34-35.

In short, construing a generic appeal waiver to extend to 

ineffective-assistance-of-counsel claims would be inconsistent 

with our understanding that a defendant must be “aware of and 

understand[] the risks involved in his decision.” Guillen, 561 

F.3d at 529. A contrary conclusion would mean that the 

defendant retained her right to counsel at sentencing while 

nonetheless giving up her ability to preserve that right. We do 

not believe that a generic appeal waiver brings about that result, 

much less that it unambiguously does so. See Hunt, 843 F.3d 

at 1027.

We note a final consideration pointing in the same 

direction. If a generic appeal waiver did encompass a claim of 

ineffective assistance of counsel at sentencing, the waiver then 

would give rise to a conflict of interest for counsel: an attorney 

generally cannot advise a client about whether to waive a 

pending claim against the attorney herself, see John Wesley 

Hall, Jr., Professional Responsibility in Criminal Defense 

Practice § 10:27 (3d ed. 2017), and the same is necessarily true 

of advice about whether to waive a future claim against the 

attorney. A number of state bar associations thus have 

determined that agreements to waive claims against an attorney

violate state ethics rules as conflicts of interest. Id. What is 

more, if counsel operates under a conflict of interest when 

giving advice about an appeal waiver, the waiver would be 
12

unenforceable “insofar as” there is then “a colorable claim” 

that the defendant “received ineffective assistance of counsel 

in agreeing to the waiver.” Guillen, 561 F.3d at 530. The better 

resolution, and the one we adopt here, is to conclude that a 

generic appeal waiver does not reach claims of ineffective 

assistance of counsel at sentencing.

We recognize that other courts of appeals have determined

otherwise. Several of our sister circuits have held that a general 

waiver of appeal rights bars a defendant from appealing on the 

ground that counsel provided ineffective assistance at 

sentencing. See Williams v. United States, 396 F.3d 1340, 

1341-42 (11th Cir. 2005); United States v. White, 307 F.3d 336, 

338, 343-44 (5th Cir. 2002); United States v. Cockerham, 237 

F.3d 1179, 1180, 1185-86 (10th Cir. 2001). But see United 

States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005). But for 

the reasons set out in this opinion, we respectfully reach a 

different conclusion, guided by our own court’s precedents 

governing the enforceability of appeals waivers. See Guillen, 

561 F.3d at 529-31; Hunt, 843 F.3d at 1026-29. 

It bears noting, finally, that the views of those courts (and 

ours) might be of limited practical significance on a 

prospective basis. After the plea agreement in this case was 

executed, the Department of Justice issued a memorandum to

all federal prosecutors directing that they “no longer seek in 

plea agreements to have a defendant waive claims of 

ineffective assistance of counsel whether those claims are made 

on collateral attack or, when permitted by circuit law, made on 

direct appeal.” U.S. Dep’t of Justice, Department Policy on 

Waivers of Claims of Ineffective Assistance of Counsel (Oct. 

14, 2014). Although the government conceivably could 

rescind that directive at some point, as things now stand, the 

question of whether an appeal waiver reaches ineffectiveassistance claims is unlikely to arise in future cases.
13

B.

Because the appeal waiver does not preclude appellant 

from appealing on the ground that he received ineffective 

assistance of counsel at sentencing, we turn to the merits of his 

ineffective-assistance claims. When a defendant asserts a 

colorable ineffective-assistance claim on appeal, this court’s 

practice is to remand to the district court “unless the record 

alone conclusively shows that the defendant either is or is not 

entitled to relief.” United States v. Bell, 708 F.3d 223, 225 

(D.C. Cir. 2013) (internal quotation marks omitted). 

To raise a colorable claim for ineffective assistance of 

counsel, a defendant must allege sufficient facts to “show two 

things: (1) that counsel’s performance was deficient, and (2) 

that the deficient performance prejudiced the defense.” United 

States v. Anderson, 632 F.3d 1264, 1268 (D.C. Cir. 2011) 

(internal quotation marks omitted); see also Strickland, 466 

U.S. at 687. Appellant raises at least one colorable claim that 

he received ineffective assistance of counsel at sentencing in 

violation of his Sixth Amendment rights. In particular, 

appellant plausibly alleges that his counsel failed to argue for a 

downward adjustment to his sentence based on his minor role 

in the offense, that a constitutionally effective attorney would 

have made that argument, and that counsel’s failure to do so 

prejudiced appellant.

Section 3B1.2 of the Sentencing Guidelines allows for a 

two-level reduction in offense level if the defendant “was a 

minor participant in any criminal activity.” U.S.S.G. 

§ 3B1.2(b). That adjustment applies to defendants who were 

“substantially less culpable than the average participant.” Id.

cmt. 3(A). Whether the adjustment applies is a fact-specific 

determination. Id. cmt. 3(C). 
14

Appellant’s attorney made no argument in his sentencing 

memoranda or in the sentencing hearing that appellant should 

receive a downward adjustment under section 3B1.2(b) for 

minor role. That adjustment arguably applied to appellant’s 

circumstances. Counsel’s failure to “specifically request” a 

potentially applicable downward adjustment might have 

amounted to deficient performance. See Soto, 132 F.3d at 58-

59. And if the district court had decided to apply a minor-role 

adjustment, appellant’s offense level would have been reduced 

by at least two levels under section 3B1.2 of the Sentencing 

Guidelines and up to four additional levels under a relevant 

corresponding guideline provision, section 2D1.1(a)(5). 

Together, the application of those provisions would have 

lowered appellant’s guidelines range from 135-168 months of 

imprisonment to 70-87 months. U.S.S.G. § 5A. The possibility 

that appellant would have received a lower sentence is 

sufficient evidence of prejudice to warrant a remand. See 

United States v. Rashad, 331 F.3d 908, 911-12 (D.C. Cir. 

2003).

The government’s responses do not persuade us otherwise. 

The government argues that appellant’s attorney did in fact 

argue for a minor role adjustment when objecting to the 

presentence report. But those brief objections had been offered 

by appellant’s previous attorney over a year before sentencing; 

they were not reiterated by appellant’s new counsel during the 

sentencing proceedings. The government additionally argues 

that any deficiency in counsel’s performance did not prejudice 

appellant because the district court affirmatively rejected the 

minor role adjustment during the sentencing hearing. But 

while the court, at various points in the sentencing hearing, 

offered its view that the minor role adjustment did not apply, 

the court did so without having been presented with any 

argument on the matter from appellant’s counsel in his 

sentencing memoranda or during the hearing. It is possible 
15

that, had the court heard an argument specifically raising the 

applicable guidelines provision, explaining the factors that go 

into the determination, and showing that the facts of this case 

fit those factors, the court would have made a different choice. 

That kind of fact-specific prejudice inquiry is best conducted 

by the district court on remand. See Bell, 708 F.3d at 225.

Because appellant raises at least one colorable claim of 

ineffective assistance of counsel that cannot be conclusively 

accepted or rejected on the record before us in this appeal, we 

remand the matter to the district court. On remand, the court 

can fully consider the claim along with the other ineffectiveassistance claims raised by appellant.

* * * * *

For the foregoing reasons, we remand the case to the 

district court for further proceedings. 

So ordered.