The Honorable William G. Cambridge, Chief Judge, United States District

1

Court for the District of Nebraska.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 97-3114

___________

United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* District of Nebraska.

Harry Lee Michelsen, *

*

Appellant. *

___________

 Submitted: January 13, 1998

Filed: April 13, 1998

___________

Before RICHARD S. ARNOLD, Chief Judge, BRIGHT and WOLLMAN, Circuit

Judges.

___________

WOLLMAN, Circuit Judge.

Harry Lee Michelsen appeals from an order by the district court dismissing the 1

appeal from his sentence based upon Michelsen’s waiver of appellate rights pursuant

to a plea agreement. We affirm.
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I.

Michelsen was charged with failure to pay past due child support in violation of

the Child Support Recovery Act (CSRA), 18 U.S.C. § 228 (1992). He retained private

counsel and consented to have his case heard by a United States Magistrate Judge. A

plea agreement was soon reached. The agreement included the following provisions:

1. ACKNOWLEDGMENT AND WAIVER OF RIGHTS AND

UNDERSTANDING OF MAXIMUM PENALTIES: The defendant

agrees that he has been fully advised of his statutory and constitutional

rights herein, and that he has been informed of the charges and allegations

against him and the penalty therefor, and that he understands these rights,

charges and penalties. The defendant further agrees that he understands

that by entering a plea of guilty as set forth hereafter, he will be waiving

certain statutory and constitutional rights to which he is otherwise

entitled.

2. PLEA AGREEMENT PROCEDURE - NO RIGHT TO WITHDRAW

PLEA IF COURT REJECTS RECOMMENDATION: The United States

and the defendant agree that this Plea Agreement is presented to the Court

pursuant to Rule 11(e)(1)(B) of the Federal Rules of Criminal Procedure,

which provides, among other things, that the government will make a

recommendation or agree not to opposed [sic] the defendant’s request for

a particular sentence, but that SUCH RECOMMENDATIONS ARE

NOT BINDING ON THE COURT and that the DEFENDANT MAY

NOT WITHDRAW HIS PLEA OF GUILTY if the Court rejects such

recommendations. 

. . . .

4. . . . Further, the United States will recommend a period of

incarceration of 6 months, that the period of incarceration shall be

suspended and defendant placed on supervised probation for a period of

5 years during which period the defendant shall make any required child

support arrearages payments as ordered by the Court. Failure to make the
The Honorable Thomas D. Thalken, United States Magistrate Judge for the

2

District of Nebraska.

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required payments may result in imposition of the court’s sentence of incarceration.

. . .

. . . .

6. WAIVER OF DEFENSE AND APPEAL RIGHTS: Defendant hereby

waives any right to raise and/or appeal and/or file any post-conviction

writs of habeas corpus or coram nobis concerning any and all motions,

defenses, probable cause determinations, and objections which defendant

has asserted or could assert to this prosecution and to the Court’s entry

of judgment against defendant and imposition of sentence under 18

U.S.C. § 3742 (sentence appeals).

Plea Agreement at 1-4 (emphasis in original). The agreement, dated February 28,

1997, was signed by both Michelsen and his attorney.

At a hearing commenced that same day, the magistrate judge accepted the plea 2

agreement as negotiated. During the hearing, the following exchange occurred:

THE COURT: Um, I’m going to hand to your counsel three documents

and you can just keep them there for the moment. First we have a petition

to enter a plea of guilty of — which purports to contain your signature on

that document. Is that your signature on the next to the last page of that

document?

MR. MICHELSEN: Yes, Your Honor, it is.

THE COURT: And in filling out this petition, who filled out the petition?

Is it you or your attorney’s handwriting on the petition?

MR. MICHELSEN: My attorney filled it out for me.
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THE COURT: And did he — did he fill it out in accordance to your

instructions as to how you answered it?

MR. MICHELSEN: Yes, Your Honor.

THE COURT: And those are the answers that you gave?

MR. MICHELSEN: Yes, Your Honor.

THE COURT: Okay. Then we have a plea agreement which is four

pages and it purports to have your signature on Page 4. Is that your

signature on Page 4?

MR. MICHELSEN: Yes, Your Honor.

THE COURT: Okay. And then we have a factual basis statement which

is three pages but on the second page it purports also to have your

signature. Is that your signature on there?

MR. MICHELSEN: Yes, Your Honor.

THE COURT: Did anybody force or threaten or coerce you to sign any

of these documents?

MR. MICHELSEN: No, Your Honor.

Transcript of Hearing on Arraignment at 3-4. And later:

THE COURT: Now, you’re offering to plead pursuant to the plea

agreement. We have the plea agreement which you’ve indicated your

signature on there. [Addressing the Government], would you summarize

the plea agreement for the Court?

[THE GOVERNMENT]: Yes, Your Honor. The plea agreement is a

four-page document which the Defendant in this case and the United

States agree to certain terms. Among them is that the Defendant will

plead guilty to the charge in the one count Information. In exchange for
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that, the — the Government will make a recommendation to the Court regarding the

sentence to be imposed in this case; although, the agreement indicates that that is a nonbinding recommendation. The Government is recommending in this case that a term

of imprisonment not be imposed and that the — rather that a period of incarceration of

six months be imposed but that it be suspended and that the Defendant be placed on

supervised probation for a period of five years during which time he would make any

child support arrearages payments that are ordered by the Court. . . .

THE COURT: Are there any other provisions in the plea agreement?

[THE GOVERNMENT]: There — there — there are others that are in

the plea agreement, Your Honor, but I think those are the main points.

THE COURT: Is that your understanding, Mr. Michelsen, with regard

to the plea agreement?

MR. MICHELSEN: Yes, Your Honor.

THE COURT: You understand that the Government is going to make a

recommendation in this matter with regards to the sentence but that

recommendation will not be binding upon the Court? Do you understand

that?

MR. MICHELSEN: I understand that, Your Honor.

THE COURT: That I can reject that and impose — theoretically impose

the maximum punishment that could be imposed, as I previously indicated

to you?

MR. MICHELSEN: Ultimately it’s your decision to make.

Transcript of Hearing on Arraignment at 9-11. No explicit reference was made during

the hearing to the provision in the plea agreement by which Michelsen waived his right

to appeal his sentence.
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Thereafter, the magistrate judge granted a motion by Michelsen’s counsel for

permission to withdraw. Michelsen subsequently waived his right to counsel and

proceeded pro se. At the sentencing hearing, the government made the following

recommendation:

[THE GOVERNMENT]: Thank you. Your Honor, the Government

does not believe that a period of incarceration is currently required for the

Defendant. The — the desire of the Government would be for this

individual to obtain employment that would result in his ability to earn

income that could be then sent to the victims of this crime. The

Government believes this is a crime to his victims who are — were

expecting this money for many years. So the Government would ask that

pursuant to the plea agreement that a term of imprisonment be imposed

but in a — suspended during the course of a five-year period of probation.

Transcript of Sentencing Hearing at 10-11.

Ultimately, the court rejected the government’s recommendation and sentenced

Michelsen to imprisonment for six months, restitution in the amount of $89,420.64, and

a special assessment of ten dollars. After imposing sentence, the court made the

following statement:

THE COURT: Mr. Michelsen, you’re advised that you may appeal this

sentence within ten days after the filing of the judgment in this matter.

That will probably happen within the next day or so. When that is filed

you will have ten days to appeal that sentence to one of the judges of the

United States District Court.

Transcript of Sentencing Hearing at 20. The government made no objection to this

statement at the time. The written judgment contained the following provision:

Following the imposition of sentence, the court advised the defendant of

his right to appeal pursuant to the provisions of Fed. R. Crim. P. 32 and
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the provisions of 18 U.S.C. § 3742(a) and that such Notice of Appeal must be filed

with the clerk of this court within ten (10) days of this date.

United States v. Harry Lee Michelsen, No. 8:96CR129-1 (D. Neb. May 13, 1997)

Judgment at 6 (Statement of Reasons for Sentence).

In his appeal to the district court, Michelsen challenged both the constitutionality

of the Child Support Recovery Act and the sentence imposed by the magistrate judge.

Rather than addressing the merits, the district court granted the government’s motion

to dismiss the appeal with prejudice, holding that Michelsen had validly waived his

appellate rights. See Memorandum Opinion and Order at 2-3 (D. Neb. July 21, 1997).

Michelsen now seeks relief from the district court’s order of dismissal.

II.

The Constitution makes no assurances regarding the right of a criminal defendant

to appeal his conviction or sentence; such a right is “purely a creature of statute.”

United States v. Rutan, 956 F.2d 827, 829 (8th Cir. 1992) (citing Abney v. United

States, 431 U.S. 651, 656 (1977)); see 18 U.S.C. § 3742; 28 U.S.C. § 1291. It is well

settled that a procedural right, whether constitutionally derived or grounded in statute,

may be waived by a criminal defendant. See United States v. Garrido, 995 F.2d 808,

814 (8th Cir. 1993); Rutan, 956 F.2d at 829. “Accordingly, a defendant who pleads

guilty and expressly waives the statutory right to raise objections to a sentence may not

then seek to appeal the very sentence which itself was part of the agreement.” Rutan,

956 F.2d at 829; see also United States v. His Law, 85 F.3d 379 (8th Cir. 1996) (per

curiam) (defendant’s promise as part of plea agreement not to appeal his sentence held

binding). Any waiver of the right to appeal, however, must be the result of a knowing

and voluntary decision. See Rutan, 956 F.2d at 829.
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Issues concerning the interpretation and enforcement of a plea agreement are

issues of law reviewed de novo. See United States v. Van Thournout, 100 F.3d 590,

594 (8th Cir. 1996). Michelsen does not dispute that his written plea agreement

contains a clear and express waiver of the right to appeal both his conviction and his

sentence. Our review, therefore, is limited to whether Michelsen’s decision to bind

himself by the provisions of this agreement was knowing and voluntary. See Rutan,

956 F.2d at 829. We look to the circumstances surrounding the signing and entry of

the plea agreement to determine whether the defendant willfully agreed to its terms.

See Lindner v. Wyrick, 644 F.2d 724, 728 (8th Cir. 1981) (“Voluntariness is

determined by factors at the time of the plea.”). Such circumstances may include “the

background, experience and conduct of the accused.” United States v. Davis, 954 F.2d

182, 186 (4th Cir. 1992) (citing Johnson v. Zerbst, 304 U.S. 458, 464 (1938)).

Michelsen does not dispute that he signed the plea agreement. He does not

dispute that he was represented by competent counsel at that time. He makes no

complaint that the assistance provided by his privately retained counsel was ineffective.

He does not contend that he was coerced to enter into the plea or that it was the

product of duress. He makes no assertion that he was misled as to the nature of the

agreement. He does not profess that he did not understand its provisions, including the

clear, bold-faced waiver of appellate rights. He has not suggested that he was

incapacitated or incompetent at the time, or that he was physically or mentally

incapable of either comprehending the agreement or knowingly assenting to its terms.

Instead, Michelsen’s challenge to the validity of his waiver rests upon three

arguments. First, Michelsen contends that because the magistrate judge did not engage

him in an explicit discussion regarding his waiver of appellate rights during the Rule

11 colloquy at his plea hearing, his waiver cannot be considered knowing and

voluntary. We do not agree. Although it might have been preferable for the court to

have conducted a colloquy with Michelsen regarding his waiver of appeal, such a

dialogue is not a prerequisite for a valid waiver of the right to appeal. See, e.g., United
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States v. Wenger, 58 F.3d 280, 282 (7th Cir. 1995); United States v. DeSantiagoMartinez, 38 F.3d 394, 395 (9th Cir. 1992); United States v. Portillo, 18 F.3d 290, 292-

93 (5th Cir. 1994); Davis, 954 F.2d at 186; but see United States v. Bushert, 997 F.2d

1343, 1351 (11th Cir. 1993) (concluding that in most circumstances, for sentence

appeal waiver to be knowing and voluntary, district court must have specifically

discussed sentence appeal waiver with defendant during Rule 11 hearing).

The record establishes that Michelsen, who turned fifty shortly after his

sentencing, is a competent, articulate high school graduate with military service,

managerial experience in the private sector, and prior experience in the criminal justice

system. His attorney of choice negotiated the agreement to which Michelsen gave his

assent. Michelsen and his attorney possessed a copy of the signed agreement at the

plea hearing. Michelsen’s statements at the hearing indicate that he fully understood

the finality of his decision to plead guilty and that the agreement was in complete

accordance with his prior understanding; that it was, in fact, the bargain to which he

had agreed. In light of these circumstances, we conclude that Michelsen’s decision to

waive his appellate rights was knowing and voluntary.

Next, Michelsen contends that the magistrate judge’s statement at the sentencing

hearing indicating that Michelsen had the right to appeal, as well as similar language

contained in the written judgment, should negate the waiver. In support of this

argument, Michelsen relies on United States v. Buchanan, in which the Ninth Circuit

held, in circumstances somewhat similar to these, that the district court’s oral

pronouncement of a right to appeal should control, rendering the defendant’s waiver

of appellate rights unenforceable. 59 F.3d 914, 917-18 (9th Cir. 1995).

Assuming that we would be free to do so, we decline to adopt the reasoning of

Buchanan. Any statement by the court at the sentencing hearing could not have

affected Michelsen’s decision, made nearly three months earlier, to plead guilty and

waive his appellate rights. See United States v. Melancon, 972 F.2d 566, 568 (5th Cir.
As we observed in Rutan, a waiver of the right to appeal one’s sentence “would 3

not prevent an appeal where the sentence imposed is not in accordance with the

negotiated agreement.” 956 F.2d at 829-30. Nor would it prevent a challenge under

28 U.S.C. § 2255 to an “illegal sentence,” such as a sentence imposed in excess of the

maximum penalty provided by statute or based upon a constitutionally impermissible

factor such as race.

The government’s failure to object to the court’s statement at the sentencing

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hearing does not affect our determination of this matter. See Melancon, 972 F.2d at

568. Although the government might well have clarified the issue by speaking up, a

formal objection to the statement was not dictated by the circumstances, as our

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1992) (fact that, four months after defendant pled guilty pursuant to agreement waiving

his right to appeal, court told him at sentencing that he had right to appeal his

conviction and sentence did not allow defendant to appeal and did not affect

determination that his waiver was voluntary, knowing, and permissible). Michelsen’s

apparent later belief -- based upon events that occurred after his sentence was imposed

-- that he might be allowed to escape from his commitments, is irrelevant to our present

inquiry. See Lindner, 644 F.2d at 728 (court looks to circumstances surrounding

signing and entry of plea agreement to determine whether defendant willfully agreed

to its terms).

Moreover, the admonition by the court that Michelsen “may appeal this sentence

within ten days after the filing of the judgment in this matter,” was not an inaccurate

statement nor wholly inconsistent with Michelsen’s waiver. Notwithstanding his

waiver, Michelsen nevertheless implicitly preserved his right to appeal on grounds that

his sentence was illegal or imposed in violation of the plea agreement. See Rutan, 956

F.2d at 829-30; United States v. Baramdyka, 95 F.3d 840, 843 (9th Cir. 1996), cert.

denied, 117 S. Ct. 1282 (1997). By informing Michelsen of the statutory right to file 3

an appeal, the court was simply complying with its duty to do so. See Fed. R. Crim.

P. 32(c)(5). In any event, the court’s recitation of Michelsen’s statutory right could not

unilaterally revoke the earlier waiver to which Michelsen had agreed.4
foregoing analysis makes clear. Moreover, this is not a case in which the defendant

was prejudiced by any failure of the government to clarify the court’s remarks. See,

e.g., United States v. Vogt, 901 F.2d 100, 102 (8th Cir. 1990) (government could not

seek to vacate plea agreement after it delayed in complaining of defendant’s breach for

ten weeks while continuing to accept agreement’s benefits by twice seeking and

receiving his grand jury testimony).

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Finally, Michelsen asserts that he is entitled to appeal because the sentence

imposed by the magistrate judge differed from the sentence negotiated under the plea

agreement. This argument is utterly without merit. Michelsen agreed to plead guilty

and waive his appellate rights in exchange for the government’s recommendation of a

suspended six-month sentence. The agreement also stated that the government’s

recommendation would not be binding on the court. As shown above, Michelsen

expressly and unequivocally acknowledged at his plea hearing that he understood as

much and that the court had the authority to reject the recommendation and impose the

maximum sentence.

The government honored its commitment and duly recommended that any period

of incarceration be suspended. The sentence ultimately imposed, although inconsistent

with the government’s recommendation, did not violate the plea agreement, nor did it

run counter to Michelsen’s professed understanding of that agreement. See United

States v. Greger, 98 F.3d 1080, 1081 (8th Cir. 1996) (holding that so long as sentence

is not in conflict with negotiated plea agreement, knowing and voluntary waiver of right

to appeal from sentence will be enforced); Hollis v. United States, 687 F.2d 257, 260

(8th Cir. 1982) (holding that where defendant is informed that sentencing decision rests

solely in discretion of sentencing court and defendant states that he understands as

much, plea will not be set aside as involuntary); Lindner, 644 F.2d at 728 (same).
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III.

Criminal defendants are vested with many important rights, including the

statutory right to appeal. We believe that defendants will be better served if they are

also empowered with a legitimate opportunity to choose between exercising such rights

and exchanging them for something they value more highly, such as a recommendation

by the government for a lenient sentence. See Wenger, 58 F.3d at 282. A waiver of

appellate rights can be of great value to an accused as a means of gaining concessions

from the government, and thus plea agreements including such waivers are strongly

supported by public policy. See Rutan, 956 F.2d at 829; United States v. Littlefield,

105 F.3d 527, 530 (9th Cir.), cert. denied, 117 S. Ct. 2423 (1997) (Hall, J., concurring)

(“We have repeatedly noted that public policy strongly supports plea agreements that

include an appeal waiver.”).

In order to preserve their value, such waivers must be accorded their proper

effect. See Rutan, 956 F.2d at 829; His Law, 85 F.3d at 379; Margalli-Olvera v.

Immigration and Naturalization Serv., 43 F.3d 345, 355 (8th Cir. 1994); United States

v. Womack, 985 F.2d 395, 400 (8th Cir. 1993). “Empty promises are worthless

promises; if defendants could retract their waivers (the practical effect, if the procedural

hurdles to an effective waiver were set too high) then they could not obtain concessions

by promising not to appeal.” Wenger, 58 F.3d at 282. The government granted

Michelsen sentencing concessions in return for an assurance that it would not be

required to expend valuable time and resources to preserve the finality of the judgment

and sentence. To permit Michelsen to attack that bargained-for finality would be to

eliminate one of the primary incentives the government has for negotiating plea

agreements. The government has already been effectively deprived of much of the

benefit of its bargain with Michelsen by having been required to respond to the appeal

to the district court and then to this court. For us to now countenance Michelsen’s

change of heart would be to diminish that bargain even more. That we will not do.
Several circuit courts of appeal have concluded that “a waiver is not knowingly 5

or voluntarily made if the district court fails to specifically question the defendant

concerning the waiver provision of the plea agreement during the Rule 11 colloquy and

the record indicates that the defendant did not otherwise understand the full significance

of waiver.” United States v. Marin, 961 F.2d 493 (4th Cir. 1992); United States v.

Bushert, 997 F.2d at 1347; United States v. Melancon, 972 F.2d 566, 567 (5th Cir.

1992); but see United States v. Desantiago-Martinez, 38 F.3d 394, 395 (9th Cir. 1994)

(holding that a Rule 11 colloquy is not a prerequisite to finding a waiver valid). There

is considerable doubt that the magistrate judge engaged Michelson in a sufficient Rule

11 colloquy regarding his waiver of his right to an appeal. However, because of other

circumstances arising at the later sentencing hearing, this need not be the basis for

determining that Michelson retained his right to an appeal.

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The order of dismissal is affirmed.

BRIGHT, Circuit Judge, dissenting.

A defendant may waive the right to an appeal, but only if the defendant makes

the waiver knowingly and voluntarily. United States v. Rutan, 956 F.2d 827, 829 (8th 5

Cir.1992); United States v. Wessells, 936 F.2d 165, 167 (4th Cir.1991); United States

v. DeSantiago-Martinez, 38 F.3d 394, 395 (9th Cir.1994). In this case, the prosecution

agreed to recommend a suspended sentence in exchange for Michelsen’s guilty plea.

The written plea agreement provided that Michelsen would waive his right to an appeal.

However, the magistrate judge who heard this case expressly nullified that waiver.

According to medical reports, severe epilepsy and asthma have totally disabled

Michelsen. Unable to work since 1994, Michelsen owns no assets and has incurred

extensive medical liabilities. In light of his physical disability and financial inability to

pay, it would seem that neither Michelsen nor the prosecution anticipated that

Michelsen would actually serve time in prison, notwithstanding the magistrate judge’s

right to impose a prison sentence. However, Michelsen’s probation officer concluded

in her presentence investigation report that “the defendant . . . has no intention of
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paying child support . . .[and] he has no money nor will he ever have money to pay this

obligation,” and recommended sentencing Michelsen to the maximum prison term. 

Michelsen appeared pro se at his sentencing. The sentencing magistrate judge

did not disclose the content of the probation officer’s report and recommendation.

Although Rule 32 of the Federal Rules of Criminal Procedure grants a judge discretion

to disclose the report, it generally requires the judge grant a defendant and defendant’s

counsel the opportunity to comment on information that provides a basis for the

defendant’s sentence. This undisclosed information may well have influenced the

magistrate judge's ultimate decision to sentence Michelsen to the maximum six-month

sentence. However, Michelsen did not have an attorney at the sentencing hearing to

protect his rights.

During Michelsen’s sentencing, the magistrate judge recognized the defendant’s

physical problems and his probable inability to pay past due support payments. The

magistrate judge clearly recognized the unusual circumstances in this case. After

questioning the defendant, the magistrate judge retired to chambers with the probation

officer. Upon returning, the magistrate judge, in passing sentence, stated:

I have considered the recommendation of the United States

Attorney’s Office and have rejected their recommendation. It is clear in

this case that the Defendant has made little, if any, effort to obtain funds

to help pay for the support of his daughter, that there was many a time

during the past years that some employment could have been obtained but

because of his illness which he is suffering from -- there is no dispute. I’m

not suggesting that the Defendant is - is feigning illness of any type

whatsoever, but he has used that as an excuse in my opinion without

obtaining some employment. There was times where there was part-time

employment that could be obtained that could be used to help defray this

enormous amount of child support that he has neglected and failed to pay.
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This sentence is essentially a sentence of punishment and I

recognize that and I am placed in that position, I think, by both the

Defendant and the Government by bringing this matter to the Court in the

present posture and what it is. And accordingly, that is the sentence of the

Court.

Sent. Tr. at 19-20.

Then the magistrate judge added:

Mr. Michelsen, you’re advised that you may appeal this sentence

within ten days after the filing of the judgment in this matter. That will

probably happen within the next day or so. When that is filed you will

have ten days to appeal that sentence to one of the judges of the United

States District Court.

Id. at 20.

The prosecution did not object.

In light of the magistrate judge’s statements concerning the reasons for the

sentence, which were contrary to the recommendation of the prosecutor, I believe the

magistrate judge, by his oral direction, and the prosecutor, by failing to object,

recognized that the defendant should have the right to an appeal in this unusual case.

In an analogous situation, the Ninth Circuit, in United States v. Buchanan, 59

F.3d 914, 917 (9th Cir.), cert. denied, 116 S.Ct. 430 (1995), has recognized that where

a district court orally advises a defendant of his right to appeal at sentencing and the

government acknowledges that right by failing to object, the defendant can appeal. That

court reasoned:

Litigants need to be able to trust the oral pronouncements of district

court judges. Given the district court judge’s clear statements at

sentencing, the defendant’s assertion of understanding, and the
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prosecution’s failure to object, we hold that in these circumstances, the

district court’s oral pronouncement controls and the plea agreement waiver

is not enforceable.

Id. at 918.

The majority here states the magistrate judge's “admonition” that Michelsen

might appeal his sentence amounted to an inaccurate statement and one not wholly

inconsistent with the waiver. However, the magistrate judge twice clearly and precisely

advised Michelsen that he could appeal.

I do not construe the magistrate judge’s statements as slips of the tongue or

misstatements. Given these directions to Michelsen by the magistrate judge, the

government’s failure to object, and the advisability of having a review of the sentence,

in the circumstances of this case, I would rule that the waiver of an appeal by Michelsen

has been nullified. I would reverse and direct the district court to consider Michelsen’s

appeal on the merits.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.