2008 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-16-2008

USA v. Goodson

Precedential or Non-Precedential: Precedential

Docket No. 06-4895

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1

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Case Nos: 06-4895, 06-4896

UNITED STATES OF AMERICA

 v.

DANIEL J. GOODSON, III

 Appellant

 

On Appeal from the United States District Court

for the Western District of Pennsylvania

District Court Nos. 05-CR-179, 06-CR-231

District Judge: The Honorable Donetta W. Ambrose

 

Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

July 1, 2008

Before: RENDELL, SMITH, and FISHER, Circuit Judges

(Filed: October 16, 2008)
2

Karen S. Gerlach

Renee Pietropaolo

Office of Federal Public Defender

1001 Liberty Avenue

1450 Liberty Center

Pittsburgh, PA 15222

Counsel for Appellant

Robert L. Eberhardt

Laura S. Irwin

Office of United States Attorney

700 Grant Street

Suite 4000

Pittsburgh, PA 15219

Counsel for Appellee

 

OPINION

 

SMITH, Circuit Judge.

Daniel J. Goodson appeals from the sentence imposed by

the United States District Court for the Western District of

Pennsylvania, challenging a condition of supervised release

requiring Goodson to consent to a search of his place of

business. The government asserts that we are precluded from

reviewing this issue because Goodson, pursuant to a plea

agreement, waived his right to file a direct appeal under 18

U.S.C. § 3742(a). In his reply brief, Goodson acknowledges for
3

the first time the existence of an appellate waiver. He contends,

however, that the waiver does not preclude this particular appeal

and that, in any event, the waiver is invalid because it was

unknowing and involuntary. 

We must determine whether Goodson’s failure to address

the applicability of the appellate waiver in his opening brief

effectively foreclosed him from subsequently challenging in his

reply brief the enforceability of the appellate waiver. We hold

that it does not. Nonetheless, we will enforce the appellate

waiver and will affirm the judgment of the District Court.

I.

On June 23, 2005, a grand jury returned an indictment

(District Court No. 05-CR-179), charging Goodson with three

counts of intending to defraud and to use an unauthorized access

device in violation of 18 U.S.C. § 1029(a)(2), and one count of

wire fraud in violation of 18 U.S.C. § 1343. Thereafter, the

government and Goodson entered into a plea agreement.

Goodson agreed, inter alia, to: (1) plead guilty to count four of

the 2005 indictment, charging him with wire fraud in violation

of 18 U.S.C. § 1343; (2) waive his right to be indicted and to

plead guilty to counts one and two of an information (District

Court No. 06-CR-231), charging him with making and uttering

counterfeit checks in violation of 18 U.S.C. § 513; and (3)

“waive[] the right to take a direct appeal from his conviction or

sentence under 28 U.S.C. § 1291 or 18 U.S.C. § 3742,” subject
4

to certain exceptions.

The appellate waiver provision of the plea agreement

states:

9. Daniel J. Goodson, III waives the right to take

a direct appeal from his conviction or sentence

under 28 U.S.C. § 1291 or 18 U.S.C. § 3742,

subject to the following exceptions:

(a) If the United States appeals

from the sentence, Daniel J.

Goodson, III may take a direct

appeal from the sentence.

(b) If (1) the sentence exceeds the

applicable statutory limits set forth

in the United States Code, or (2)

the sentence unreasonably exceeds

the guideline range determined by

the Court under the Sentencing

Guidelines, Daniel J. Goodson, III

may take a direct appeal from the

sentence. 

The foregoing reservations of the right to appeal

on the basis of specified issues do not include the

right to raise issues other than those specified.
5

Daniel J. Goodson, III further waives the right to

file a motion to vacate sentence, under 28 U.S.C.

§ 2255, attacking his conviction or sentence, and

the right to file any other collateral proceeding

attacking his conviction or sentence. 

The maximum penalties involved were set forth in the

agreement, including the maximum term of supervised release

of three years. On the last page of the plea agreement was an

acknowledgment by Goodson that he had read the agreement,

discussed it with his counsel, and accepted that it fully set forth

the terms of his agreement with the government. Goodson

signed this acknowledgment, and his counsel witnessed his

signature. 

The following day, during the change of plea hearing, the

District Judge conducted a plea colloquy, during which Goodson

affirmed that he was 31 years of age, had a college degree, and

understood the English language. The Court reviewed the

various rights that Goodson was giving up by pleading guilty.

She also reviewed what the government was required by law to

prove if Goodson went to trial. In explaining the maximum

penalties Goodson faced if convicted, the Court addressed not

only the maximum term of imprisonment, but also the fine, the

term of supervised release, the mandatory special assessment,

and restitution. The Court noted the existence of the plea

agreement and requested that the prosecutor review the

substance of the agreement on the record. In describing the
6

waiver, the prosecutor stated:

There is a waiver provision in the plea agreement

that deals with him waiving his right to take a

direct appeal from his conviction. There are

certain exceptions that are specified in the

agreement which would permit him to take an

appeal under those circumstances. He also agrees

to the waiver of his right to file a 28 U.S.C. §

2255 motion.

At the conclusion of the prosecutor’s statement, the District

Judge asked Goodson if he had heard the prosecutor’s recitation.

Goodson affirmed that he had. The Court then asked if

Goodson understood what the prosecutor had said. Goodson

again replied in the affirmative. Later during the proceeding,

this exchange took place:

Court: Do you understand that under certain

circumstances, this relates to what you have given

up in the plea agreement, you or the government

may have the right to appeal any sentence that I

impose?

Defendant: Yes, Your Honor.

Court: But do you understand that you have given

up substantial appellate rights in the plea

agreement?
7

Defendant: Yes, Your Honor. 

Thereafter, Goodson pleaded guilty to the wire fraud count in

the indictment, and the two counts of making and uttering a

counterfeit security. The Court found that Goodson’s pleas

were knowing and voluntary, and accepted them. 

Subsequently, the District Court sentenced Goodson on

both the 2005 and the 2006 criminal actions to concurrent terms

of 27 months of imprisonment, which were to run concurrently,

in part, with sentences previously imposed by the Allegheny

County Court of Common Pleas. In addition, the Court imposed

a three year period of supervised release, including as a

condition of supervised release that Goodson maintain gainful

employment and that Goodson “shall consent to the United

States Probation Office conducting periodic unannounced

examinations of his computer system(s)” and that he “shall

submit to [sic] his person, residence, place of business,

computer, and/or vehicle to a warrantless search conducted and

controlled by the United States Probation Office at a reasonable

time and in a reasonable manner, based upon reasonable

suspicion of contraband or evidence of a violation of a condition

of release.” 

At the conclusion of the sentencing hearing, the District

Court advised that Goodson had the right to appeal his sentence

within ten days. On the heels of this statement, the prosecutor

reminded the Court that Goodson “waived his right to appeal in
The government could have raised the applicability of 1

Goodson’s appellate waiver prior to briefing on the merits of the

appeal by filing a motion for summary action under Third

Circuit L.A.R. 27.4, seeking enforcement of the appellate

waiver and dismissal of the appeal. Consistent with Third

Circuit I.O.P. 10.6, the government would have been afforded

an opportunity to submit argument in support of its motion,

together with the copies of the plea agreement and plea

colloquy. The defendant also would have been afforded the

8

this case” with certain exceptions enumerated therein. In

response, the Court clarified that “whatever is not covered by

the waiver in the plea agreement, you have a right to appeal on.”

Id. 

Goodson filed a timely appeal from the sentences

imposed in both the 2005 and the 2006 criminal actions. The

government did not file a motion to dismiss the appeal through

enforcement of the appellate waiver. Instead, the parties

complied with the briefing schedule issued by this Court.

Goodson asserted in his appellate brief that the condition of

supervised release requiring that he consent to a warrantless

search of his “place of business” was “so broad it is beyond the

court’s power to order and the defendant’s power to obey.” 

The government then raised the appellate waiver issue for

the first time, arguing that Goodson had knowingly waived his

right to challenge this portion of his sentence. The government 1
opportunity to submit opposition to such a motion. 

9

cited Goodson’s failure either to mention the appellate waiver

in his initial brief or to explain why the issue he was raising was

not encompassed by the waiver. In addition, the government

addressed the merits of Goodson’s challenge to the condition of

supervised release requiring that he consent to a search of his

business. 

Goodson filed a reply brief. In it, he argued that the

appellate waiver did not clearly and unambiguously preclude a

challenge to the conditions of supervised release, and he

asserted that the burden was on the government to demonstrate

that the waiver extended to the question in this appeal, i.e.,

“whether the term ‘sentence’ clearly and unambiguously

includes any and all conditions of supervised release,

particularly those not suggested by the statute.” According to

Goodson, “sentence” means only the term of incarceration.

Moreover, Goodson argued in his reply brief that his waiver was

neither knowing nor voluntary because the District Court failed

to conduct an adequate colloquy under Federal Rule of Criminal

Procedure 11(b)(1)(N).

II.

The District Court exercised jurisdiction under 18 U.S.C.

§ 3231. In United States v. Gwinnett, 483 F.3d 200, 203 (3d Cir.

2007), we declared that we have “subject matter jurisdiction
10

over the appeal by a defendant who had signed an appellate

waiver.” Our jurisdiction arises under 18 U.S.C. § 3742(a). 

See United States v. Cooper, 437 F.3d 324, 327-28 (3d Cir.

2006). 

III.

In United States v. Khattak, 273 F.3d 557 (3d Cir. 2001),

we held that “waivers of appeals are generally permissible if

entered into knowingly and voluntarily, unless they work a

miscarriage of justice.” Id. at 558. After concluding that

Khattak’s waiver was enforceable, we declared that we lacked

jurisdiction to consider the merits of his appeal. Id. at 563.

Because we tied the validity of an appellate waiver to appellate

jurisdiction, defendants routinely addressed the validity and

enforceability of such waivers in the initial appellate brief.

Subsequently, in Gwinnett, we clarified that

“notwithstanding the statement in Khattak, this court retains

subject matter jurisdiction over the appeal by a defendant who

had signed an appellate waiver.” 483 F.3d at 203 (discussing

Khattak, 273 F.3d at 563). Because an appellate waiver is not

dispositive of whether we may exercise appellate jurisdiction, it

is unclear in the wake of Gwinnett whether a defendant must

affirmatively address the applicability of an appellate waiver in

his opening brief. In other words, we must decide in the matter

before us whether a defendant may wait and question for the

first time in his reply brief the government’s contention that the
11

appellate waiver bars his appeal. If he may not, then a

defendant’s silence in his opening brief regarding the nonapplicability of the waiver will constitute an abandonment of

any challenge to the government’s invocation of the waiver.

In our view, judicial efficiency is the only basis that

weighs in favor of requiring a defendant to affirmatively address

the applicability of an appellate waiver in his opening brief, and

then only slightly. Our standard briefing schedule does not

provide an opportunity for the government to respond to

arguments raised in a defendant’s reply brief. Accordingly,

strict adherence to the standard three-step order of battle could

result in a waiver issue being inadequately briefed. Permission

to allow the government to file a sur reply elongates the process

by adding an additional step, with whatever additional time and

resources such a step requires. This, however, seems a small

price to pay in exchange for the assurance that both a defendant

and the government will have an adequate opportunity to fully

address the validity vel non of an appellate waiver. 

The judicial efficiency argument is outweighed by

several reasons that favor permitting a defendant to wait until

the government first chooses to invoke the waiver. First, it is,

by and large, the government that bargains for and benefits from

an appellate waiver in a plea agreement. See United States v.

Hahn, 359 F.3d 1315, 1328 (10th Cir. 2004) (en banc). For that

reason, if the government seeks to preserve the benefit of its

bargain for an appellate waiver, we believe it is incumbent upon
To obtain the full benefit of its bargain, we emphasize 2

that the government may file a motion for summary action under

Third Circuit L.A.R. 27.4 to enforce the waiver and to dismiss

the appeal. The defendant may then submit argument in

opposition. See Third Circuit I.O.P. 10.6. A motions panel will

then rule on the enforceability of the waiver. This approach is

beneficial to the government because briefing at this stage is

limited to the validity and scope of the waiver. See United

States v. Hahn, 359 F.3d 1315, 1328 (10th Cir. 2004) (en banc)

(adopting intra-circuit procedure, which encourages the

government to file a motion to enforce, which addresses the

validity and scope of the waiver, “but not the underlying merits

of the defendant’s appeal”). 

12

the government to invoke the waiver’s applicability in the first

instance. Indeed, in United States v. Hall, 515 F.3d 186 (3d 2

Cir. 2008), we noted that the Government did not move to

summarily affirm the appeal or to enforce the waiver. Because

the government addressed Hall’s arguments on the merits, we

did likewise. Id. at 193-94. Thus, we acknowledged that an

appellate waiver may have no bearing on an appeal if the

government does not invoke its terms. See also United States v.

Story, 439 F.3d 226 (5th Cir. 2006) (concluding that when the

government does not seek to enforce an appellate waiver, the

waiver is not binding). Once invoked, however, the waiver is at

issue and the defendant should be afforded the opportunity to

respond in his reply brief to the government’s contention that the
Our acknowledgment that the government usually 3

bargains for and benefits from an appellate waiver is consistent

with the well-established principle that “‘[p]lea agreements,

although arising in the criminal context, are analyzed under

contract law standards[.]’” United States v. Williams, 510 F.3d

416, 422 (3d Cir. 2007) (quoting United States v. Nolan-Cooper,

155 F.3d 221, 236 (3d Cir.1998)). Although it is an imperfect

analogy, in the civil context, “waiver” and the validity of a

contractual provision are affirmative defenses that must be

pleaded by the party seeking to avoid liability. FED. R. CIV. P.

8(c). We do not expect a plaintiff to raise invalidity in her

complaint. Thus, the approach we set forth is not only logical

inasmuch as it requires the party relying upon a waiver provision

to affirmatively invoke it, it is also in conformity with our

traditional regime of resolving waiver issues in civil litigation.

There are any number of reasons that the government 4

may choose not to invoke the waiver. For example, the

government may be of the view that the best way to address the

defendant’s challenge is on the merits of the issue raised.

Alternatively, the government may recognize that the waiver

13

waiver is enforceable and warrants dismissal of the appeal.3

In other words, the mere fact that a plea agreement

contains a waiver of a defendant’s right to file a direct appeal

does not mean that the enforceability of that waiver is

automatically at issue in that appeal. This is so because the

government may always choose not to invoke an appellate

waiver. Where the government has not first invoked an 4
does not encompass the issue raised by the defendant, or that the

Rule 11 colloquy was deficient and that the waiver might not be

enforceable. 

14

appellate waiver, there is no reason for any party to address the

enforceability of the waiver. Allowing the defendant to respond

in his reply brief to the government’s invocation of a waiver,

however, requires the government in the first instance to do the

heavy lifting and to explain why an appellate waiver should

preclude our review. 

The second reason for allowing a defendant to address

the inapplicability of an appellate waiver in his reply brief is

because a defendant may file his opening brief with a reasonable

belief that the appellate waiver in his plea agreement does not

extend to the issue or issues raised in his appeal. Indeed, in

Khattak, we expressed our belief that “waivers of appeals should

be strictly construed.” 273 F.3d at 562. Thus, the language of

a waiver, like the language of a contract, matters greatly. If a

waiver provides limited grounds for appeal, it follows that some

appeals will not be barred by an appellate waiver. If the

government believes that a waiver prohibits the appeal,

however, it may invoke the waiver and set forth the reasons why

we should find it precludes our review. A defendant, however,

should not be foreclosed from asserting in his reply brief what

may be a meritorious argument concerning the unenforceability

of an appellate waiver he does not believe bars our review. 
15

Third, we must be mindful that the federal criminal rules

seek to protect a defendant who agrees to waive his appeal

rights by mandating in Rule 11(b)(1)(N) that “[b]efore the

[district] court accepts a plea of guilty . . . the court must address

the defendant personally in open court. During this address, the

court must inform the defendant of, and determine that the

defendant understands, the following: . . . (N) the terms of any

plea-agreement provision waiving the right to appeal or to

collaterally attack the sentence.” FED. R. CRIM. P. 11(b)(1)(N).

This provision was adopted because the Advisory “Committee

believed it was important to insure first, a complete record exists

regarding any waiver provisions, and second, that the waiver

was voluntarily and knowingly made by the defendant.” Id.

(Advisory Committee Notes, 1999 Amendment) (discussing

subdivision (c)(6), which became part of subdivision (b)(1) with

reorganization in 2002). These procedural protections, we

believe, strongly militate in favor of affording a defendant an

opportunity to dispute in his reply brief whether his waiver

prohibits his appeal. Indeed, were we to hold that a defendant

forfeited his opportunity to challenge the validity and

enforceability of an appellate waiver merely by not having done

so in his opening brief, we would be adopting an approach that

conflicts with the spirit and purpose of Rule 11(b)(1)(N).

We recognize that in United States v. Miliano, 480 F.3d

605 (1st Cir. 2007), the First Circuit declared that 

a defendant who waives his right to appeal and
We by no means suggest that a defendant should never 5

address the applicability of an appellate waiver in his opening

brief. Such an approach is, however, one of tactical importance

only.

16

thereafter attempts to avoid the effect of the

waiver must confront the waiver head-on. Where,

as here, the defendant simply ignores the waiver

and seeks to argue the appeal as if no waiver ever

had been executed, he forfeits any right to

contend either that the waiver should not be

enforced or that it does not apply. . . . Miliano’s

appeal is subject to dismissal for this reason

alone.

Id. at 608. Miliano does not guide our analysis, however,

because the defendant in Miliano effectively abandoned any

challenge to the validity of the appellate waiver by failing to

discuss the waiver in either his initial brief or his reply brief. 

In sum, we hold that a defendant is not obliged in his

opening brief to acknowledge the existence of an appellate

waiver and/or to explain why the waiver does not preclude

appellate review of the substantive issue raised. Rather, it is

only after the government has invoked an appellate waiver as a

bar to our review that a defendant must raise any challenge to

the waiver’s enforceability. 

5

Because the government has invoked the appellate waiver
17

contained in Goodson’s plea agreement, and because Goodson

attacks both the scope and the validity of the waiver in his reply

brief, we proceed to determine whether that waiver bars our

review of the condition of supervised release allowing

warrantless searches of his computer at his place of business. 

IV.

In United States v. Jackson, 523 F.3d 234 (3d Cir. 2008),

we considered whether a defendant’s waiver of her right to

appeal prohibited her from challenging the reasonableness of her

sentence. There, we enumerated three elements to be considered

when the government invokes an appellate waiver and the

defendant contends that the waiver does not bar her appeal: (1)

whether the waiver “of the right to appeal her sentence was

knowing and voluntary;” (2) “whether one of the specific

exceptions set forth in the agreement prevents the enforcement

of the waiver;” i.e., what is the scope of the waiver and does it

bar appellate review of the issue pressed by the defendant; and

(3) “whether enforcing the waiver would work a miscarriage of

justice.” Id. at 243-244.

A.

Goodson’s appellate waiver was broad, waiving “the

right to take a direct appeal from his conviction or sentence

under 28 U.S.C. § 1291 or 18 U.S.C. § 3742,” unless (1) the

government appealed from the sentence, (2) the sentence
We exercise plenary review in deciding whether an issue 6

raised by a defendant falls within the scope of an appellate

waiver in his plea agreement. United States v. Joyce, 357 F.3d

921, 922 (9th Cir. 2004). 

18

exceeded the applicable statutory limits set forth in the United

States Code, or (3) the sentence unreasonably exceeded the

guideline range determined by the District Court in applying the

United States Sentencing Guidelines. Inasmuch as the

government did not appeal, and mindful that Goodson’s

sentence of 27 months exceeded neither the statutory limit of

twenty years for wire fraud nor the guideline range of 27-33

months determined by the District Court, it appears that the

waiver precludes appellate review.

Goodson, however, contends that the special condition of

supervised release imposed by the District Court is excepted

from the appellate waiver because it is not among either the

mandatory or discretionary conditions set forth in the United

States Code, and thereby exceeds the applicable statutory limits.6

This is a creative argument, but it ignores the plain text of 18

U.S.C. § 3583(d), which enumerates both mandatory and

discretionary conditions of supervised release, and provides that

“[t]he court may order, as a further condition of supervised

release . . . any other condition it considers to be appropriate.”
Goodson also asserts that the special condition of 7

supervised release at issue exceeds the applicable guideline

because it is not among the mandatory or discretionary

conditions set forth in U.S.S.G. § 5D1.3. This argument also

falls short, because guideline § 5D1.3(b), like § 3583(d),

addresses the ability of the sentencing court to impose “other

conditions of supervised release” to the extent they are

reasonably related to some of the factors set forth in 18 U.S.C.

§ 3553(a). 

19

18 U.S.C. § 3583(d). See United States v. Voelker, 489 F.3d 7

139, 143-44 (3d Cir. 2007) (recognizing that conditions other

than the listed mandatory and discretionary conditions of

supervised release in § 3583(d) may be imposed by a district

court in order to tailor the conditions to the specific offense and

offender).

Alternatively, Goodson points out that Khattak requires

that we strictly construe the terms of an appellate waiver, 273

F.3d at 562, and he asserts that the waiver’s use of the term

“sentence” should be construed to mean only the term of

incarceration. We disagree. 

 For a criminal defendant, a sentence is the

pronouncement by the sentencing court, pursuant to chapter 227

of the Federal Crimes Code concerning “Sentences,” of the

punishment for “a defendant who has been found guilty of an

offense . . . in any Federal statute . . . .” 18 U.S.C. § 3551(a).
20

Section 3551 provides that “a defendant who has been found

guilty of an offense described in any federal statute . . . shall be

sentenced in accordance with the provision of this chapter [227]

so as to achieve the purposes set forth in subparagraphs (A)

through (D) of section 3553(a)(2) . . . .” 18 U.S.C. § 3551.

Under chapter 227 of the Federal Crimes Code, the period of

incarceration is but one component of the sentence. Other

components may be probation under § 3561, supervised release

under § 3583, a fine under § 3571, and/or restitution under §

3556.

Indeed, § 3583(a) provides that “[t]he court, in imposing

a sentence to a term of imprisonment for a felony . . . may

include as a part of the sentence a requirement that the

defendant be placed on a term of supervised release after

imprisonment.” 18 U.S.C. § 3583(a) (emphasis added).

Subsection (d) of this statutory provision enumerates certain

mandatory and discretionary conditions of supervised release

that a defendant must comply with during any such term of

supervision, and provides, as we noted above, that “[t]he court

may order, as a further condition of supervised release . . . any

other condition it considers to be appropriate.” 18 U.S.C. §

3583(d). Thus, the duration, as well as the conditions of

supervised release are components of a sentence. By waiving

his right to take a direct appeal of his sentence, Goodson waived

his right to challenge the conditions of his supervised release,

which were by definition a part of his sentence. See United

States v. Perez, 514 F.3d 296 (3d Cir. 2007) (concluding that
21

restitution, which was part of defendant’s sentence, was subject

to defendant’s appellate waiver).

In our view, the text of the waiver before us establishes

that the term “sentence” as used in Goodson’s appellate waiver

applies to not only the period of incarceration that will be

imposed, but also any other component of punishment. By

stating that Goodson “waives the right to take a direct appeal

from his . . . sentence under . . . 18 U.S.C. § 3742,” the provision

explicitly bars any appeal relying upon § 3742 for jurisdiction.

Because § 3742 is the only statutory section that provides

jurisdiction for an appeal of a condition of supervised release,

Goodson’s waiver bars his challenge. 

In United States v. Joyce, the Ninth Circuit considered

this same issue. It reasoned:

Despite the dual meaning of “sentence” in

common usage, the statute that provides the only

source of Joyce’s right to appeal is crystal clear.

Under 18 U.S.C. § 3742(a)(3), a “sentence” can

include fines, periods of imprisonment, and

supervised release, and mandatory and special

conditions of supervised release. That is the only

statutory basis upon which Joyce may invoke the

jurisdiction of this court to challenge any aspect

of the sentence imposed, including an attack on

specific conditions of his supervised release. 
Although we hold that the term “sentence” in Goodson’s 8

appellate waiver encompasses the conditions of supervised

release, we would add that the government is of course free to

include explicit language in its waivers detailing whether the

waiver applies to the right to appeal the term of incarceration

22

357 F.3d 921, 924 (9th Cir. 2004). The Tenth Circuit agreed

with this rationale in United States v. Sandoval, 477 F.3d 1204

(10th Cir. 2007), concluding that “[s]upervised-release

conditions are part of the sentence: and the reference to 18

U.S.C. § 3742 (the statutory basis for sentence appeals) in ¶ 10

of the plea agreement makes clear that the waiver encompasses

all appellate challenges to the sentence other than those falling

within the explicit exception for challenges to upward

departures.” Id. at 1207 (citing Joyce, 357 F.3d at 922-24). See

also United States v. Andis, 333 F.3d 886, 892 n.7 (8th Cir.

2003) (noting that waiver of “all rights to appeal whatever

sentence is imposed” included that “portion of sentence which

involved the imposition of a term of supervised release and its

conditions”); United States v. Sines, 303 F.3d 793, 798-99 n.3

(7th Cir. 2002) (finding that waiver of right to appeal any

portion of his sentence that was within the guideline range

constituted a waiver of Sines’s right to appeal the “terms of his

supervised release”).

Accordingly, we hold that Goodson’s waiver of his right

to appeal his sentence under § 3742 encompassed his right to

appeal the conditions of his supervised release.8
alone, or all components of the sentence to be imposed. Such

language may have the advantage of avoiding future challenges

of this kind.

23

B.

Inasmuch as Goodson’s challenge to the condition of

supervised release is within the scope of his appellate waiver,

we must consider his argument that his waiver was unknowing

and involuntary because the District Court did not conduct an

adequate colloquy under Federal Rule of Criminal Procedure

11(b)(1)(N). Rule 11(b)(1)(N), as we noted above, mandates

that “[b]efore the court accepts a plea of guilty . . . the court

must address the defendant personally in open court. During

this address, the court must inform the defendant of, and

determine that the defendant understands, the following: . . . (N)

the terms of any plea-agreement provision waiving the right to

appeal or to collaterally attack the sentence.” 

1.

In United States v. Vonn, 535 U.S. 55 (2002), the

Supreme Court held that a defendant, who has not objected in

the trial court to a Rule 11 error, “has the burden to satisfy the

plain-error rule and that a reviewing court may consult the

whole record when considering the effect of any error on

substantial rights.” Id. at 59. Plain error requires that there must
24

be (1) error, (2) that is plain or obvious, and (3) that affects a

defendant’s substantial rights. Johnson v. United States, 520

U.S. 461, 467 (1997); United States v. Olano, 507 U.S. 725, 732

(1993). “If all three conditions are met, an appellate court may

then exercise its discretion to notice a forfeited error, but only if

(4) the error seriously affect[s] the fairness, integrity, or public

reputation of judicial proceedings.” Johnson, 520 U.S. at 467

(quoting Olano, 507 U.S. at 732) (internal quotation marks

omitted). In conducting plain error review, it is the “defendant

rather than the Government who bears the burden of persuasion

with respect to” whether the error affected his substantial rights.

Olano, 507 U.S. at 734.

In United States v. Edgar, 348 F.3d 867 (10th Cir. 2003),

the Tenth Circuit applied Vonn’s plain error standard in

reviewing a defendant’s contention that his appellate waiver was

unenforceable because his plea colloquy was deficient. The

Tenth Circuit noted Rule 11(b)(1)(N)’s requirements and

reasoned that “[i]n light of the clear text of Rule 11(b)(1)(N) and

the Supreme Court’s decision in Vonn, we see no reason why we

should treat Rule 11(b)(1)(N) any differently.” Id. at 870. The

Court instructed that “it is always error for a district court to fail

to discuss an appellate waiver provision during a Rule 11

colloquy, although not always reversible error.” Id. at 871.

Such error, the Court concluded, was also plain and obvious as

the congressional mandate in the Rule was clear. Id. at 871-72.

After considering the plea agreement and colloquy, the Court

concluded that Edgar had failed to meet his burden of
We note that Vonn’s plain error standard applies only to 9

unobjected-to violations of Fed. R. Crim. P. 11, where the

district court has failed to “inform the defendant of, and

determine that the defendant understands,” a factor enumerated

in Rule 11(B)(1), including the waiver of the right to appeal or

collaterally attack the sentence. The plain error standard does

not apply when a defendant’s challenge to the knowing or

voluntary nature of a waiver does not involve the district court’s

compliance with the plea colloquy required by the Rule. For

example, a defendant who claims that he was misled or coerced

into entering the agreement, or that he was incompetent when he

signed the waiver, challenges the validity of the waiver itself,

not the Rule 11 colloquy. Such a challenge would receive de

25

establishing that he did not understand the waiver and that the

deficient colloquy had affected his substantial rights. Id. at 872-

73. As a result, the Court concluded the waiver was enforceable

and dismissed the appeal.

The Sixth, Seventh, and Ninth Circuit Courts of Appeals

also have applied plain error review to a defendant’s claim that

his appellate waiver should be unenforceable because of an

inadequate colloquy. See United States v. Arellano-Gallegos,

387 F.3d 794, 796 (9th Cir. 2003); United States v. Murdock,

398 F.3d 491, 496 (6th Cir. 2005); United States v. Sura, 511

F.3d 654, 658 (7th Cir. 2008). We agree with our sister courts

of appeals that Vonn’s plain error standard of review should be

applied when assessing whether there was a violation of Rule

11(b)(1)(N), which warrants setting an appellate waiver aside.9
novo review without the need for objection in the district court.

See United States v. Gwinnett, 483 F.3d 200, 203 (3d Cir. 2007);

United States v. Khattak, 273 F.3d 557, 560 (3d Cir. 2001).

26

2.

Consistent with Vonn’s plain error standard, we consult

the “whole record” in determining whether there is a basis for

holding Goodson’s appellate waiver unenforceable. In light of

the circumstances surrounding Goodson’s agreement to enter a

plea, the plain language of the plea agreement and the District

Court’s colloquy, we conclude that there was error and that the

error was obvious in light of the plain dictates of Rule

11(b)(1)(N). The rule clearly provides that the District Court

“must address the defendant personally” and “must inform the

defendant of, and determine that the defendant understands . . .

the terms of any plea-agreement provision waiving the right to

appeal or to collaterally attack the sentence.” FED. R. CRIM. P.

11(b)(1)(N). Here, the District Court relied upon the

prosecutor’s recitation of the terms of the appellate waiver to

fulfill its obligation to inform the defendant of the specifics of

the waiver provision. This was error. Although the Court did

ask Goodson personally whether he understood that he had

given up substantial appellate rights, we cannot ignore that there

was no effort to verify that Goodson understood the breadth of

the waiver or to underscore the fact that the waiver meant that,

subject to three very narrow exceptions, Goodson was giving up
This error was compounded, in our view, by the 10

government’s failure to ask the District Court to comply with the

mandate of Rule 11(b)(1)(N). We pause to remind district

courts of the centrality of their role in assuring that defendants

fully understand the scope and terms of an appellate waiver. See

Khattak, 273 F.3d at 563 (observing that the role of the district

judge “is critical”). We believe that the directive in Rule

11(b)(1)(N) is best effectuated when the district courts advise

the defendants of the specifics of the appeal waiver and

ascertain whether defendants understand: the specifics of the

appellate waiver; its breadth; the limited exceptions that may be

set forth in the waiver; and the frequency or infrequency with

which such an exception occurs. For example, Goodson’s

waiver allowed for an appeal if his sentence exceeded the

statutory maximum for the offense of conviction. This

exception is unlikely to occur. As a result, to the extent a

defendant perceives that the exception provides him some

avenue to seek relief, a colloquy intended to dispel that view is

likely to achieve Rule 11's purpose of assuring that the waiver

was both knowing and voluntary. 

27

the right to appeal both the validity of his plea and the legality

of his sentence. This too was error. See Edgar, 348 F.3d at 10

871; Arellano-Gallegos, 387 F.3d at 796-97; Murdock, 398 F.3d

at 497; and Sura, 511 F.3d at 661. 

Our inquiry is not limited, however, to whether there was

a technical violation of Rule 11. Rather, we must determine

whether Goodson, who bears the burden of persuasion, Olano,
28

507 U.S. at 734, has demonstrated that the deficient colloquy

affected his substantial rights by precluding him from knowing

of and understanding the significance of the binding appellate

waiver in the plea agreement. Here, the evidence demonstrates

that Goodson was college educated, and had successfully

perpetrated wire fraud and the uttering of counterfeit checks,

that he was able to read the plea letter and to comprehend the

meaning of its provisions, that the District Court explained that

his punishment would include a period of supervised release,

that the prosecutor generally discussed the terms of the appellate

waiver, and that Goodson advised the Court that he understood

that his right to appeal was substantially limited. In fact, the day

before the change of plea hearing, Goodson had executed the

acknowledgment on the final page of his plea agreement,

indicating that he had read the agreement, which included the

appeal waiver, and discussed it with his counsel. His counsel

also witnessed Goodson’s execution of the document. 

Under these circumstances, we conclude that Goodson

has failed to meet his burden of proving that the deficient Rule

11 colloquy precluded him from understanding that he had a

right to appeal and that he had substantially agreed to give up

that right. We hold that Goodson’s substantial rights were not

affected by the inadequate colloquy. In the absence of plain

error under Vonn, there is no basis for setting aside the appellate
In Olano, the Supreme Court explained that “Rule 52(b) 11

is permissive, not mandatory. If the forfeited error is ‘plain’ and

‘affect[s] substantial rights,’ the court of appeals has authority

to order correction, but is not required to do so.” 507 U.S. at

735. The Supreme Court further noted that it had “previously

explained that the discretion conferred by Rule 52(b) should be

employed in those circumstances in which a miscarriage of

justice would otherwise result.” Id. at 736 (omitting citations

and internal quotation marks). It declared, however, that “the

standard that should guide the exercise of remedial discretion

under Rule 52(b)” is that the “Court of Appeals should correct

a plain forfeited error affecting substantial rights if the error

seriously affects the fairness, integrity or public reputation of

judicial proceedings.” Id. at 736 (citation, internal quotation

marks and brackets omitted). Because we have determined that

the Rule 11 error did not affect Goodson’s substantial rights, we

also conclude that the enforcement of the waiver will not work

a miscarriage of justice. See Jackson, 523 F.3d at 244

(instructing that the third element to be considered in deciding

whether an appellate waiver is enforceable is whether

enforcement would constitute a miscarriage of justice).

29

waiver in this case. Cf. Murdock, 398 F.3d at 498 (concluding 11

that complete omission in Rule 11 colloquy affected defendant’s

substantial rights, but noting that it might be sufficient for a

prosecutor to summarize the key elements of a plea agreement

and to address the scope of an appellate waiver); ArellanoGallegos, 387 F.3d at 797 (setting aside appellate waiver
30

because there was a “wholesale omission” of the appellate

waiver in the Rule 11 colloquy); see also Sura, 511 F.3d at 662

(noting that utter silence about waiver of appellate rights

supported a finding that defendant’s substantial rights were

affected by deficient colloquy). 

V. 

For the reasons set forth above, we conclude that

Goodson’s appeal of one of the conditions of his supervised

release is subject to the appellate waiver contained in his plea

agreement. Although the District Court’s colloquy regarding the

appellate waiver was less than Rule 11(b)(1)(N)’s ideal, the

record fails to demonstrate that the error affected Goodson’s

substantial rights. Accordingly, we conclude that the appellate

waiver is enforceable and we will affirm the judgment of the

District Court.