In the 

United States Court of Appeals 

For the Seventh Circuit ____________________ 

No. 18-1304 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

v.

JASON GALLOWAY, 

Defendant-Appellant. 

____________________ 

Appeal from the United States District Court for the 

Southern District of Indiana, Evansville Division. 

No. 3:16-cr-00012-RLY-MPB-1 — Richard L. Young, Judge. 

____________________ 

ARGUED DECEMBER 4, 2018 — DECIDED MARCH 4, 2019 

____________________ 

Before BAUER, KANNE, and BRENNAN, Circuit Judges. 

BRENNAN, Circuit Judge. Jason Galloway pleaded guilty to 

possessing ammunition as a felon. He now appeals his 

sentence, raising an unpreserved argument that the district 

court used an incorrect guideline range. We dismiss his 

appeal, however, because in his plea agreement Galloway 

waived his appellate rights. 
2 No. 18-1304 

I. 

On January 21, 2016, police officers responded to a domestic violence 911 call from Galloway’s ex-wife in Evansville, 

Indiana. The officers found Galloway a short distance from 

his ex-wife’s house and arrested him. A search incident to 

arrest yielded four bullets from his pant pocket. Galloway, a 

convicted felon, was indicted for violating 18 U.S.C. 

§ 922(g)(1) by possessing a firearm (a revolver found at his 

ex-wife’s house) and ammunition (the bullets in his pocket). 

Before trial, the parties reached an agreement in which 

Galloway pleaded guilty to the ammunition count in 

exchange for dismissal of the firearm count (among other 

things). The written plea agreement that Galloway signed 

contained the following appellate waiver, which we repeat in 

full because of its importance to this case: 

24. Direct Appeal: The defendant understands that the defendant has a statutory right 

to appeal the conviction and sentence imposed 

and the manner in which the sentence was 

determined. Acknowledging this right, and in 

exchange for the concessions made by the Government in this Plea Agreement, the defendant 

expressly waives the defendant’s right to appeal 

the conviction imposed in this case on any 

ground, including the right to appeal conferred 

by 18 U.S.C. § 3742. The defendant further 

agrees that in the event the Court sentences the 

defendant to a sentence higher or lower than 

any recommendation of either party, regardless 

of the defendant’s criminal history category or 

how the sentence is calculated by the Court, 
No. 18-1304 3

then the defendant expressly waives the 

defendant’s right to appeal the sentence 

imposed in this case on any ground, including 

the right to appeal conferred by 18 U.S.C. 

§ 3742. This waiver of appeal specifically 

includes all provisions of the guilty plea and 

sentence imposed, including the length and 

conditions [of] supervised release and the 

amount of any fine. 

Petition to Enter Plea of Guilty and Plea Agreement at ¶24, 

ECF No. 68. 

The second sentence in the paragraph above explains 

Galloway unconditionally waived his right to appeal his 

conviction. With respect to sentencing issues, however, the 

third sentence conditions Galloway’s appellate waiver on a 

deviation by the district court from a recommendation made 

by one of the parties. 

At the change of plea hearing, the district court reviewed 

the language of the appellate waiver verbatim. The district 

court also engaged in the following colloquy with Galloway: 

THE COURT: Mr. Galloway, what this 

paragraph tells us is that in exchange for 

concessions made to you by the United States in 

arriving at this plea agreement, if I accept the 

plea agreement and sentence you pursuant to 

the plea agreement, then you’ll be giving up or 

waiving your right to appeal the conviction and 

sentence in this case to a higher court. Is that 

your understanding as well? 

GALLOWAY: Yes, sir. 
4 No. 18-1304 

THE COURT: Did you discuss this with your 

attorney? 

GALLOWAY: Yeah, we did. 

THE COURT: Is this all voluntary? 

GALLOWAY: Yes. 

Following this exchange, the district court accepted 

Galloway’s guilty plea and set a date for sentencing. 

The probation officer’s sentencing recommendation stated 

Galloway’s guideline range would have been 130 to 162 

months in prison, were it not capped by the 120-month 

statutory maximum. The government filed a sentencing 

memorandum asking the district court to give Galloway the 

full 120 months. Galloway did not file a sentencing memorandum, nor did he lodge any written objections to the probation 

officer’s guideline calculations. 

At sentencing, Galloway’s attorney told the court he had 

determined, after reviewing the Sentencing Guidelines and 

applicable case law, that “there was no way to make an objection to the probation officer’s findings” and that he believed 

her guideline calculations were correct. Defense counsel did 

argue the guideline range “clearly overstate[s] the events that 

took place that night and can and should be addressed by way 

of a departure by this Court.” For its part, the government 

reiterated its position that 120 months was the correct prison 

term. 

After hearing argument, the district court sentenced 

Galloway to 120 months in prison, three years of supervised 

release, a $1,000 fine, and a $100 special assessment. The 

district court also informed Galloway that, in its opinion, 
No. 18-1304 5

Galloway had waived his appellate rights because the 

sentence was “pursuant to the plea agreement” and “below 

what the guidelines call for.” Galloway nevertheless appealed 

the sentence. 

II. 

A defendant may waive appellate rights through a plea 

agreement, assuming such waiver is voluntary and knowing. 

United States v. Worthen, 842 F.3d 552, 554 (7th Cir. 2016) 

(“Generally speaking, appeal waivers are enforceable and 

preclude appellate review.”) (citing United States v. Sines, 303 

F.3d 793, 798 (7th Cir. 2002)); see also United States v. Malone, 

815 F.3d 367, 370 (7th Cir. 2016). A written appellate waiver 

signed by the defendant will typically be voluntary and 

knowing, and thus enforceable through dismissal of a subsequent appeal. United States v. Williams, 184 F.3d 666, 668 (7th 

Cir. 1999). 

Here, Galloway does not dispute that he voluntarily and 

knowingly agreed to the waiver in his plea agreement—a 

sensible concession after his plea colloquy. Galloway instead 

argues the waiver, according to its own terms, does not apply. 

See Garza v. Idaho, No. 17-1026, 2019 WL 938523, at *4 (U.S. 

Feb. 27, 2019) (“As courts widely agree, a valid and enforceable appeal waiver only precludes challenges that fall within 

its scope.”) (internal punctuation marks and citation omitted);

see also United States v. Chapa, 602 F.3d 865, 868 (7th Cir. 2010). 

Galloway asserts the district court did not impose a “sentence 

higher or lower than any recommendation of either party” 

because it followed the government’s recommendation for a 

120-month prison term and he (allegedly) did not make any 

“recommendation” whatsoever. 
6 No. 18-1304 

We interpret plea agreements—including appellate 

waivers contained within them—according to ordinary 

principles of contract law. Malone, 815 F.3d at 370. Unambiguous terms must be given their plain meaning. Id. But we 

consider the parties’ reasonable expectations and construe 

ambiguous terms in the light most favorable to the defendant.

United States v. O’Doherty, 643 F.3d 209, 217 (7th Cir. 2011); see 

also United States v. Quintero, 618 F.3d 746, 751 (7th Cir. 2010). 

The language used in this appellate waiver is unusual.1 If 

the district court did not deviate from “any recommendation” 

made by either party regarding sentencing, then the waiver is 

not triggered. Thus, the viability of Galloway’s appeal relies 

on his premise that his lawyer’s sentencing arguments did not 

constitute a recommendation because they did not include a 

specific proposal for a certain length of incarceration. We see 

no authority for such a restrictive interpretation of the term 

“recommendation.” 

True, sentencing recommendations often take the form of 

a requested term of imprisonment, which frequently includes 

a number or range of months. See, e.g., Santobello v. New York, 

404 U.S. 257, 259 (1971) (government “recommended the maximum one-year sentence”); United States v. Peterson, 891 F.3d 

296, 300 (7th Cir. 2018) (defendant filed a “recommendation” 

asking “for a sentence of only one day time served”). But the 

word “recommendation” (as used in the context of federal 

sentencings) does not exclusively refer to a proposed length 

of custody: other suggestions regarding the terms of a 

 1 Counsel for both parties represented to the court at oral argument 

that, in their experience, the waiver language at issue is uncommon in 

federal plea agreements and perhaps a unique local practice. 
No. 18-1304 7

defendant’s sentence count as well. See, e.g., United States v. 

Smith, 906 F.3d 645, 648 (7th Cir. 2018) (referring to proposed 

supervised release conditions as part of a “sentencing recommendation”); United States v. Stochel, 901 F.3d 883, 887 (7th Cir. 

2018) (calling proffered offense level calculations “sentencing 

recommendations”); United States v. Harris, 843 F.3d 311, 313 

(7th Cir. 2016) (describing a joint “recommendation” regarding criminal history calculations); United States v. Morris, 836 

F.3d 868, 869 (7th Cir. 2016) (explaining a plea agreement 

required the government “to make several specific sentencing 

recommendations” on different issues). 

Although Galloway’s lawyer may not have spelled out the 

number of months he proposed Galloway should spend 

behind bars, he unmistakably advocated for a 

below-guideline sentence. He told the district court, “[T]he 

findings of the probation officer clearly overstate the events 

that took place that night and can and should be addressed 

by way of a departure by this Court.” Defense counsel 

concluded his argument by saying, “While I agree the 

criminal history speaks for itself, I also think there’s a whole 

lot more to this story and how this fit[s] together, and I do 

think Jason is an appropriate person for the Court to issue a 

departure on.” Galloway’s lawyer’s comments can be read 

only as a request that the district court sentence Galloway to 

something less than the 120-month statutory maximum. Such 

statements constitute a “recommendation” for purposes of 

the plea agreement. See Recommendation, BLACK’S LAW 

DICTIONARY (10 ed. 2014) (“A specific piece of advice about 

what to do, esp. when given officially.”); see also Recommend, 

BALLENTINE’S LAW DICTIONARY (3d ed. 2010) (“To advise in 

favor of a course of action to be taken.”); Recommend, 

WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY (1961) 
8 No. 18-1304 

(“[T]o mention or introduce as being worthy of acceptance, 

use, or trial.”). 

To be sure, there exists a grey area between simple oral 

advocacy at a hearing and making a sentencing “recommendation.” Compare United States v. Lewis, 842 F.3d 467, 475 (7th 

Cir. 2016) (holding the government did not make a 

recommendation when describing the defendant’s conduct as 

“horrific,” “egregious,” “aggravated,” etc.) with United States 

v. Salazar, 453 F.3d 911, 914 (7th Cir. 2006) (noting the 

government may breach a commitment to recommend a 

particular sentence by “requesting a light sentence while 

simultaneously arguing forcefully that a defendant is 

vicious”). But even if Galloway’s lawyer did not understand 

he was making a recommendation, this would not render the 

term “recommendation” ambiguous. Cf. ANTONIN SCALIA &

BRYAN A. GARNER, READING LAW 31–32 (2012) (distinguishing 

ambiguity from vagueness and noting “[a] word or phrase is 

ambiguous when the question is which of two or more 

meanings applies; it is vague when its unquestionable meaning has uncertain application to various factual situations”); 

Vesuvius USA Corp. v. American Commercial Lines LLC, 910 F.3d 

331, 334 (7th Cir. 2018) (recognizing a term is not ambiguous 

merely because the parties disagree as to the proper interpretation). Galloway’s interpretation proposes he could have his 

cake and eat it too: defense counsel could advocate for a 

below-guideline prison term so long as he avoided magic 

words triggering the appellate waiver. Such a strained 

interpretation of “recommendation” is not reasonable. 

In short, the argument by Galloway’s lawyer asking the 

district court to depart from the guideline range qualifies as a 

“recommendation” within the plain meaning of the plea 
No. 18-1304 9

agreement’s appellate waiver. Although the waiver language 

used in this plea agreement is anomalous, that does not 

render Galloway’s voluntary and knowing waiver of his 

appellate rights any less valid or enforceable. Cf. Williams, 184 

F.3d at 669 (“[T]he fact that we could envision a more precise 

colloquy does not alone render this appeal waiver invalid.”). 

III. 

Because Galloway waived his appellate rights, we have no 

occasion to reach his merits arguments. United States v. 

Jemison, 237 F.3d 911, 916 (7th Cir. 2001). This appeal is 

DISMISSED.