United States Court of Appeals

For the Eighth Circuit

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No. 17-2494

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United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

Lashone Gates

lllllllllllllllllllllDefendant - Appellant

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Appeal from United States District Court 

for the Western District of Missouri - Kansas City

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Submitted: November 14, 2018

Filed: February 11, 2019

[Published]

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Before GRUENDER, KELLY, and GRASZ, Circuit Judges.

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PER CURIAM.

Lashone Gates claims for the first time on appeal that a provision in his plea

agreement waiving his right to request or receive records pursuant to the Freedom of

Information Act (“FOIA”), 5 U.S.C. § 552, violates public policy and is, therefore,

invalid. Lacking jurisdiction, we dismiss his appeal. 
Gates pleaded guilty to violating 18 U.S.C. § 2423(d) and (e) for attempting to

arrange, for the purpose of private financial gain, the travel of a person in interstate

commerce in order to engage in a commercial sex act with a person under 18 years

of age. As part of his written plea agreement, Gates waived his appellate and postconviction rights. That waiver excluded from its scope collateral attacks on the

grounds ofineffective assistance of counsel and prosecutorial misconduct. Gates also

waived his right “to request or receive from any department or agency of the United

States any records pertaining to the investigation or prosecution of this case

including, without limitation, any records that may be sought under the Freedom of

Information Act, 5 U.S.C. § 552.” Gates did not challenge the validity of this FOIA

waiver before the district court. 

On appeal, Gates challenges the FOIA waiver “in connection with a collateral

attack on grounds permitted by his appeal waiver: ineffective assistance of counsel

or prosecutorial misconduct.” He claims that “[n]o legitimate criminal justice interest

justifies Gates’ FOIA waiver asitrelatesto claims ofineffective assistance of counsel

and prosecutorial misconduct.” The waiver, he adds, “harms FOIA’s primary policy

objective, namely, to promote public oversight of government processes, here, the

criminal justice process.” Notably, Gates does not actually bring claims for

ineffective assistance of counsel or prosecutorial misconduct. He also does not allege

that he requested or was denied any records on the basis of his FOIA waiver.

We lack jurisdiction because Gates’s FOIA waiver claim is not ripe. “The

ripeness doctrine is grounded in both the jurisdictional limits of Article III of the

Constitution and policy considerations of effective court administration.” KCCP Tr.

v. City of N. Kansas City, 432 F.3d 897, 899 (8th Cir. 2005). “Ripeness requir[es] us

to evaluate both the fitness of the issues for judicial decision and the hardship to the

parties of withholding court consideration.” Texas v. United States, 523 U.S. 296,

300-01 (1998) (internal quotation marks omitted). “The fitness prong safeguards

against judicial review of hypothetical or speculative disagreements.” Parrish v.

Dayton, 761 F.3d 873, 875 (8th Cir. 2014) (internal quotation marks omitted). The

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hardship prong considers whether delayed review“inflicts significant practical harm”

on the petitioner. Id.

The validity of Gates’s FOIA waiver is not fit for judicial review because Gates

has not requested any records from the government pursuant to FOIA. Despite the

FOIA waiver, Gates is not precluded from requesting records from the government,

and the government is not obligated to deny his request. Also, if the government

were to deny his request, Gates could challenge that denial in a separate action. For

example, in Price v. U.S. Dep’t of Justice Attorney Office, a criminal defendant

entered into a plea agreement containing a FOIA waiver identical to the FOIA waiver

in Gates’s plea agreement. 865 F.3d 676, 678, 686 n.2 (D.C. Cir. 2017). 

Nevertheless, the defendant submitted a FOIA request to the Federal Bureau of

Investigation. Id. at 678. The FBI denied his request, reasoning that the defendant

had waived his right to receive such records related to his case. Id. The defendant

challenged that denial in federal district court. Id. The district court addressed his

waiver arguments, and the D.C. Circuit reviewed on appeal the question of whether

the FBI lawfully withheld the records. Id. 

Gates also will not suffer harm if we do not address his claim. He does not

allege that he currently needs records “pertaining to the investigation or prosecution

of this case,” much lessthat he has any reason to believe thatsuch records will enable

him to bring a colorable claim for either ineffective assistance of counsel or

prosecutorial misconduct, the two types of appeals permitted by his plea agreement. 

For these reasons, Gates’s FOIA waiver claim is not ripe. Deciding it now

would amount to the issuance of an advisory opinion in violation of Article III. See

KCCP Tr., 432 F.3d at 899 (“Article III limits the federal courts to deciding ‘Cases’

and ‘Controversies’ and thus prohibits us from issuing advisory opinions.”). We are

without jurisdiction and dismiss the appeal. 

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