FILED

United States Court of Appeals

Tenth Circuit

May 20, 2014

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 13-6014

TERRY JO ROLLINGS,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

(D.C. NO. 5:11-CR-00064-D-2)

Thomas E. Kimble, Arlington, Texas for Appellant.

Edward J. Kumiega, Assistant United States Attorney (Sanford C. Coats, United

States Attorney, and Steven W. Creager, Special Assistant United States Attorney,

with him on the brief) United States Attorney’s Office, Oklahoma City,

Oklahoma, for Appellee.

Before HARTZ, SEYMOUR, and TYMKOVICH, Circuit Judges.

TYMKOVICH, Circuit Judge.
Terry Jo Rollings pleaded guilty to one count of knowingly possessing

stolen goods. As part of the plea agreement, Rollings waived the right to appeal

his guilty plea, the restitution imposed, and any other aspect of his conviction. 

Despite waiving his right to appeal in his plea agreement, Rollings now

wants to challenge his guilty plea. He argues that his guilty plea was not knowing

and voluntary because he was not advised of the court’s authority to order

restitution and because he was not aware of all of the elements of the crime

charged. Since his guilty plea allegedly was not knowing and voluntary, he

claims that his waiver of his right to appeal the plea was likewise invalid. The

government moved to enforce Rollings’s appeal waiver under United States v.

Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc) (per curiam).

We conclude that, in determining whether an appellate waiver is knowing

and voluntary under Hahn, we may consider whether the entire plea agreement,

including the plea, was entered knowingly and voluntarily. Because we find that

Rollings’s guilty plea was knowing and voluntary, we AFFIRM the decision of

the district court and GRANT the government’s motion to enforce the appeal

waiver in Rollings’s plea agreement.

I. Background

Rollings entered into a plea agreement in which he pleaded guilty to

stealing a cargo trailer truck. The plea agreement outlined the conduct underlying

his guilty plea. In particular, the agreement stated:

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Defendant agrees to enter a plea of guilty to Count 3 of

the Third Superseding Indictment . . . charging [he]

knowingly possessed and concealed with intent to

convert to their own use, chattels of a value in excess of

$1,000.00 in violation of Title 18, United States Code,

Sections 659 and 2(a).

App. 133.1

 The plea agreement also stated that, to be found guilty of violating 18

U.S.C. §§ 659 and 2(a) as charged in the Third Superseding Indictment, Rollings

was required to admit the basic elements of the crime: (1) he knowingly

concealed and possessed the property described in the Third Superseding

Indictment; (2) he did so “with the intent to deprive the owner of the use or

benefit of the property or goods”; (3) the property was part of interstate or foreign

shipment at the time; and (4) the property was over $1,000 in value. Id.

As part of the agreement, Rollings also signed a plea petition in which he

stated: 

I possessed and concealed a North American Cargo

trailer and its contents valued over one thousand dollars

including its contents that was part of interstate

shipment with the intent to deprive the owner of use or

benefit of the property. This was in the Western Dist of

Okla from March 09 to May 2009. 

1

 Rollings argues that he did not receive a copy of the Third Superseding

Indictment until minutes before the plea hearing, two days after he executed the

plea agreement. But the plea agreement he signed states that he is pleading guilty

to the Third Superseding Indictment, and Rollings admits that the language in the

Third Superseding Indictment is identical to the previous indictment, of which he

was aware.

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Id. at 151. Rollings also affirmed that he knowingly and voluntarily waived his

right to appeal or collaterally challenge his “guilty plea, sentence, restitution

imposed, and any other aspect of his conviction.” Id. at 137. 

At the subsequent hearing to approve the plea agreement, the government

summarized the deal, describing the underlying charges and the facts that

supported the plea agreement. Following the prosecutor’s summary, the district

court assessed Rollings’s understanding of the charges and punishment:

THE COURT: Sir, do you believe that you fully

understand the nature of the charges, the possible

punishment, and the constitutional rights you’re entitled

to?

THE DEFENDANT: Yes.

THE COURT: Knowing all the rights that you have and

would be waiving and fully understanding the nature of

the charges against you and the possible punishment,

how do you plead to Count III of the Third Superseding

Indictment? Guilty or not guilty?

THE DEFENDANT: Guilty.

Id. at 216–17. The district court then asked the prosecutor to summarize the

terms of the agreement and question Rollings about the factual basis for his guilty

plea. Also during the plea colloquy, Rollings indicated that he understood the

constitutional rights he was forfeiting by pleading guilty and that he understood

that by pleading guilty he waived the right to appeal or collaterally challenge the

sentence. Following the colloquy with the prosecutor, the district court accepted

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Rollings’s guilty plea, finding that Rollings entered the plea “voluntarily and with

full understanding of the rights being given up, and that there is a factual basis for

[his] plea.” Id. at 226. 

II. Analysis

Rollings contends that the appellate waiver was invalid because he did not

knowingly and voluntarily enter the plea agreement containing the appellate

waiver. He bases this contention on two mistakes he claims the district court

made in approving the plea agreement: (1) it misled him about the elements of

the crime to which he pleaded guilty, and (2) it failed to apprise him that it could

order substantial restitution as part of the sentence. In other words, he did not

fully understand his crime or his potential punishment in entering the plea

agreement. According to Rollings, his plea, therefore, was not knowing and

voluntary.

The government asks us to ignore these questions. It points to the appellate

waiver and urges us to confirm the waiver and dismiss the appeal, relying on

Hahn, 359 F.3d at 1325–28. Applying the analytical framework for enforcing

appellate waivers set out in Hahn, the government argues we should limit our

inquiry only to the appellate waiver provision of the plea agreement in

determining whether the agreement itself was entered knowingly and voluntarily. 

In response, Rollings argues that our cases require a more holistic review of the

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entire plea agreement, including the guilty plea, to ascertain whether the

agreement was entered knowingly and voluntarily.

We conclude the better reading of the law is that where, as here, the parties

intended the agreement to stand or fall as a whole, we may examine all of the

terms of the plea agreement in deciding whether to enforce an appellate waiver.

A. Hahn and Appellate Waivers

Hahn instructs us to enforce an appellate waiver after a familiar three-step

process. We consider whether (1) “the disputed appeal falls within the scope of

the waiver of appellate rights”; (2) “the defendant knowingly and voluntarily

waived his appellate rights”; and (3) “enforcing the waiver would [not] result in a

miscarriage of justice.” Hahn, 359 F.3d at 1325 (emphasis added). The

defendant bears the burden of establishing these requirements. See id. at 1329. 

To resolve the second step of whether the waiver was knowing and

voluntary, Hahn instructs us to look to the plea agreement and the explanation the

district court provided to the defendant. Thus, we ordinarily look to (1) “whether

the language of the plea agreement states that the defendant entered the agreement

knowingly and voluntarily”; and (2) whether the district court conducted “an

adequate Federal Rule of Criminal Procedure 11 colloquy.”2

 Id. at 1325 (citations

2

 Federal Rule of Criminal Procedure 11 states, among other things, that

before accepting a guilty plea, the court must address the defendant in open court

and determine that the defendant understands “the nature of each charge to which

the defendant is pleading,” “any maximum possible penalty, including

(continued...)

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omitted). In making this evaluation, we consider the “totality of the

circumstances,” recognizing the “synergistic effect” of both the “express language

of the plea agreement, if sufficiently clear, detailed, and comprehensive, or the

probing inquiry of a proper Rule 11 colloquy.” United States v. Tanner, 721 F.3d

1231, 1234 (10th Cir. 2013) (per curiam). In Hahn we concluded that an

appellate waiver could be knowing and voluntary if the right was voluntarily

relinquished—regardless of “what claims of error, if any, [the defendant] is

foregoing”—because “[t]he whole point of a waiver . . . is the relinquishment of

claims, regardless of their merit.” Hahn, 359 F.3d at 1326 & n.12 (citations

omitted).

Following Hahn, however, the scope of our inquiry in determining whether

defendants knowingly and voluntarily waived their appellate rights has not been

entirely consistent. Instead of looking solely to the defendant’s understanding of

the relinquished rights—such as jury trial, appeal, sentencing certainty—we have

also looked to whether the defendant understood the nature of the charges and the

consequences of the guilty plea itself. Compare, e.g., Tanner, 721 F.3d at

1234–35 (citing evidence that the defendant understood the terms of the plea

agreement, including the factual basis for the plea, and the consequences of the

2

(...continued)

imprisonment, fine, and term of supervised release,” any “mandatory minimum

penalty,” the court’s “authority to order restitution,” and “the terms of any pleaagreement provision waiving the right to appeal or to collaterally attack the

sentence.” Fed. R. Crim. P. 11(b)(1)(G),(H),(I),(N).

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plea agreement), and United States v. Salas-Garcia, 698 F.3d 1242, 1254 (10th

Cir. 2012) (noting that the plea agreement and district court explained the

immigration consequences of a guilty plea), with, e.g., United States v. Smith, 500

F.3d 1206, 1210–12 (10th Cir. 2007) (focusing solely on whether the court

explained that the defendant was waiving her right to appeal and to collaterally

attack her conviction), and United States v. Chavez-Salais, 337 F.3d 1170, 1173

(10th Cir. 2003) (inquiring only whether district court informed the defendant he

was waiving his right to make a later motion under 18 U.S.C. § 3582(c)).

Adding to the uncertainty, in United States v. Mitchell, 633 F.3d 997, 1001

(10th Cir. 2011), albeit in a different context, we held that “[i]f a guilty plea is

not knowing and voluntary, it is void, and any additional waivers in the plea

agreement generally are unenforceable.” As a result, in that case we looked to the

voluntariness of the plea to conclude that the defendant’s waiver of the

protections of Federal Rule of Evidence 410 was knowing and voluntary. See id.

at 1002 (“The entirety of the record bears out the district court’s conclusion [that

Mitchell’s plea was knowing and voluntary] . . . . The plea agreement therefore is

enforceable.”). Similarly, in United States v. Vidal, 561 F.3d 1113, 1118 (10th

Cir. 2009), we reviewed the voluntariness of the defendant’s plea, despite an

appellate waiver. See Vidal, 561 F.3d at 1118 (noting that “[w]e need not decide

[whether ambiguity in the Rule 11 colloquy precluded] a knowing and intelligent

waiver of the defendant’s right to appeal because we conclude on the merits that

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her guilty plea was knowing and intelligent.”)3

; see also United States v. Byrum,

567 F.3d 1255, 1258 n.2 (10th Cir. 2009) (stating that although the defendant

waived his right to appeal or collaterally challenge his conviction and sentence,

“[t]o the extent Byrum challenges the district court’s denial of his attempt to

withdraw his guilty plea under Rule 11 (and hence the condition precedent to the

court’s acceptance of the plea agreement), or whether his plea was knowing and

voluntary, our review is not precluded” and further stating that the defendant

“cannot succeed on his merits argument even assuming it was not waived”).

The ambiguity in our cases is whether an appellate waiver contained in a

plea agreement can be knowing and voluntary if the plea in the plea agreement

was not also knowing and voluntary. As a result, we must decide whether, in

applying the second step of the Hahn inquiry, we should consider whether a

defendant’s entire plea agreement was knowing and voluntary—not merely

whether the defendant understood the particular rights he was giving up when he

entered into the plea agreement.

3

 In Hahn, we stated that we would not consider the merits of an appeal in

determining whether to enforce an appellate waiver. See Hahn, 359 F.3d at 1328

(“The parties will not be directed to brief the underlying merits of the defendant’s

appeal. If the panel finds that the plea agreement is enforceable, it will

summarily dismiss the appeal. If the panel finds the plea agreement

unenforceable, it will issue a ruling consistent with this finding.”). Here, unlike

in Hahn, the merits of the appeal concern the voluntary nature of the plea as it

relates to the knowing and voluntary nature of the plea agreement. Hahn’s

directive not to consider the merits of the appeal, therefore, does not apply to

appeals alleging that the plea agreement was not knowing and voluntary. See

Vidal, 561 F.3d at 1118. 

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We conclude it is appropriate to consider the knowing and voluntary nature

of the entirety of the plea agreement to satisfy this inquiry. In other words, if the

defendant did not voluntarily enter into the agreement, the appellate waiver

subsumed in the agreement also cannot stand. This follows from the logic of

Hahn. Our holding is premised on the understanding that “contract principles

govern plea agreements.” Hahn, 359 F.3d at 1324–25. In Hahn, we borrowed

this understanding from an Eighth Circuit case, United States v. Andis, 333 F.3d

886 (8th Cir. 2003), whose approach to enforcing appellate waivers we adopted

with “slight variation.” Hahn, 359 F.3d at 1325. In Andis the court explained the

“requirement that a plea agreement and waiver be entered into knowingly and

voluntarily applies to each term of an agreement.” Andis, 333 F.3d at 890

(emphasis added).4

 Thus, for example, “an agreement, or aspects of an

agreement” would not be entered into with the requisite knowledge or

voluntariness if it resulted from such influences as undue coercion or ineffective

assistance of counsel. Id.

As a matter of logic and practicality, then, we must examine the totality of

the plea agreement—both the appellate waiver and the plea provisions—in

4

 The government has not argued here that the provisions in the agreement

are severable, and, even if it had, this argument would fail because the plea

agreement on its face is completely integrated. See App. 132 (“This document

contains the entire plea agreement between defendant, Terry Jo Rollings, and the

United States through its undersigned attorney. No other agreement or promise

exists, nor may any additional agreement be entered into unless in writing and

signed by all parties.”).

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determining whether the plea agreement was knowing and voluntary.5

 With

regard to the plea, we must therefore ascertain at a minimum whether the

defendant had notice of the nature of the charges against him and the possible

penalties the charges carry. See United States v. Gigot, 147 F.3d 1193, 1199

(10th Cir. 1998) (holding that a plea was not knowing and intelligent “choice

between available alternatives” where the defendant was not properly informed

about the charged crimes and penalties).

Other circuits apply a similar framework. See, e.g., United States v. OrtizGarcia, 665 F.3d 279, 284–85 (1st Cir. 2011) (finding an appellate waiver not

knowing and voluntary because neither the plea agreement nor the Rule 11

colloquy informed the defendant of the maximum possible penalty for the offense

to which the defendant pleaded guilty); United States v. Cervantes, 420 F.3d 792,

794 (8th Cir. 2005) (confirming that the plea agreement advised the defendant of

the “nature and range of her possible sentence” and that the defendant had

reviewed the provisions of the plea agreement with her attorney before finding

that the appeal waiver in the plea agreement was knowing and voluntary); United

States v. Portillo-Cano, 192 F.3d 1246, 1250 (9th Cir. 1999) (noting that the

defendant’s challenge to Rule 11 colloquy “goes to the heart of whether his guilty

plea, including the waiver of appeal, is enforceable. Thus, we must determine

5

 Where only the appellate waiver provision is challenged, as in most

cases, we are not obligated to consider whether the plea in the plea agreement is

valid.

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whether the plea was valid in order to determine if appeal is permitted.”); United

States v. Rosa, 123 F.3d 94, 100 (2d Cir. 1997) (“A second disturbing

characteristic of this waiver provision relates to the well-established principle that

all plea bargains must be made knowingly and voluntarily. It has been recognized

that even under a standard plea agreement a court must carefully scrutinize the

plea proceeding and search for a clear demonstration of the extent of the

defendant’s knowledge and the voluntary nature of the plea.” (citing United States

v. Ready, 82 F.3d 551, 556 (2d Cir. 1996))); United States v. Wenger, 58 F.3d

280, 282 (7th Cir. 1995) (“Waivers of appeal must stand or fall with the

agreements of which they are a part. If the agreement is voluntary, and taken in

compliance with Rule 11, then the waiver of appeal must be honored. If the

agreement is involuntary or otherwise unenforceable, then the defendant is

entitled to appeal.”).

One objection the government makes is that this approach implicitly

expands Hahn and undercuts the benefit of the bargain—avoiding appeals that the

defendant has relinquished. We disagree. Under Hahn we already undertake a

searching review of the plea agreement and Rule 11 colloquy in determining

whether the appellate waiver was knowing and voluntary. This review ordinarily

requires us to decide if the record discloses whether the plea in the plea

agreement was also entered into knowingly and voluntarily. In most cases this

inquiry poses no problem. The defendant is represented by counsel, and the court

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confirms the defendant’s admission of guilt in open court, explaining the nature

of the charges, the terms of the plea agreement, and the potential punishment. 

In sum, in considering whether an appellate waiver is knowing and

voluntary, we consider whether the defendant entered into the plea agreement

knowingly and voluntarily. Where a plea agreement contains a plea and an

appellate waiver, we may therefore look to whether the plea was knowing and

voluntary in deciding whether the plea agreement was entered knowingly and

voluntarily. 

B. Rollings’s Plea Agreement

Rollings argues that his guilty plea was not knowing and voluntary for two

reasons arising from the Rule 11 colloquy: (1) the district court’s failure to advise

him of the court’s authority to order restitution6

; and (2) the district court’s

failure to ensure he understood the elements of the charged offense—that he must

possess the stolen goods while knowing them to be stolen. 

Whether a guilty plea was entered knowingly and voluntarily is generally a

question of law we review de novo. See Vidal, 561 F.3d at 1118. If defense

counsel did not object to the validity of the plea, we review solely for plain error. 

See id. at 1118–19. Plain error exists if there is “(1) an error; (2) that is plain; (3)

6

 At oral argument, Rollings stated that this was “not now his main

argument,” although he acknowledges he had made it below. Because in our view

Rollings did not go so far as to abandon this line of argument, we therefore

consider it on the merits.

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which affects the government’s substantial rights; and (4) which seriously affects

the fairness, integrity, or public reputation of judicial proceedings.” Id. at 1119

(citations and internal quotation marks omitted). Because Rollings’s counsel did

not object to the validity of his plea, we review his claim for plain error.

(1) Restitution

The government does not dispute that the district court failed to state that it

had the power to order restitution in violation of Federal Rule of Criminal

Procedure 11(b)(1)(K).7

 But to establish that the error affected substantial rights,

the defendant “must show a reasonable probability that, but for the error, he

would not have entered the plea.” United States v. Dominguez Benitez, 542 U.S.

74, 83 (2004). If a defendant “receives the information omitted by the district

court from other sources,” he “generally cannot demonstrate that he would not

have pleaded guilty had the court also so informed him.” United States v. Ferrel,

603 F.3d 758, 763 (10th Cir. 2010). 

Rollings argues that he was not apprised of the court’s power to order

restitution and the amount of restitution, which in this case was substantial

because of related conduct by his co-defendant. Although unknown at the time of

the plea colloquy, after the presentence investigation, the district court ordered

him to pay almost $500,000 in restitution based on all of the conduct associated

7

 Rule 11(b)(1)(K) requires the court to advise the defendant of the court’s

“authority to order restitution” before the court accepts a plea of guilty.

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with the crime and the crimes of a co-defendant.8

 The loss attributable to

Rollings’s theft of the cargo trailer was $45,000. 

To support his argument, Rollings relies on our holding in United States v.

Pogue, 865 F.2d 226 (10th Cir. 1989). In Pogue, we held that a defendant was

prejudiced by the district court’s failure to inform him of the possibility of

restitution and that he was later ordered to pay $1.7 million even though he had

notice of only a possible $2,000 fine. But Pogue is distinguishable. The

defendant in Pogue had no prior knowledge of the district court’s power to order

restitution. See Pogue, 865 F.2d at 228 (“Both the record of defendant’s plea

hearing and his written statement in advance of plea corroborate defendant’s

claim that he was not informed by the district court of the possibility of

restitution prior to entering his plea.”). Here, in contrast, Rollings’s plea

agreement clearly informed him that the court would order restitution. The plea

agreement, signed two days prior to the Rule 11 colloquy, contained an entire

paragraph alerting Rollings to the district court’s duty, not merely its power, to

order restitution.9

 In addition, the plea petition Rollings signed stated that the

8

 Rollings’s restitution obligation was joint and several with a codefendant.

9

 The plea agreement states, “[T]he Court must order the payment of

restitution to the victim(s) of the offense. Pursuant to 18 U.S.C. §§ 3663(a)(3)

and 3663A, the parties further agree that, as part of the sentence resulting from

the defendant’s plea, the Court will enter an order of restitution to all victims of

the defendant’s relevant conduct as determined by reference to the United States

(continued...)

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district court could require restitution.10 Considering, as we must, the

“synergistic effect” of the plea agreement and colloquy, Tanner, 721 F.3d at

1234, we conclude that Rollings had adequate notice of the district court’s power

to order restitution.

Furthermore, Rollings also specifically agreed in the plea agreement that

the restitution order would encompass not only the victims of the offense to

which he was pleading guilty, but “all victims of the defendant’s relevant conduct

as determined by reference to the United States Sentencing Guidelines.” App.

133–34. And Rollings was not required to know with specificity the exact

amount of restitution that would be ordered before he forfeited his appellate

rights. See United States v. Ruiz, 536 U.S. 622, 629 (2002) (“[T]he law ordinarily

considers a waiver knowing, intelligent, and sufficiently aware if the defendant

fully understands the nature of the right and how it would likely apply in general

in the circumstances—even though the defendant may not know the specific

detailed consequences of invoking it.”).

9

(...continued)

Sentencing Guidelines.” App. 133–34 (emphasis added).

10 Paragraph 20 of the plea petition states in relevant part, “If you plead

GUILTY, the judge may require you to make restitution to any victim of the

offense [18 U.S.C. §§ 3663(a)(3) and 3664]” and notes that for certain offenses

occurring on or after April 24, 1996, “ordinarily the judge is required to order you

to pay restitution to any victim of the offense [18 U.S.C. § 3663A].” App. 146.

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As a result, Rollings was aware of both the court’s power to order

restitution and the possible restitution he could be required to pay. Thus,

Rollings has not satisfied his burden of showing the district court’s failure to

adequately inform him of its power to order restitution affected his substantial

rights or is a miscarriage of justice. See Ferrel, 603 F.3d at 764.

2. Elements of the Charges

Rollings also asserts that the prosecutor never confirmed during the Rule 11

colloquy whether he possessed stolen goods while knowing them to be stolen, as

required by 18 U.S.C. § 659. 

During the colloquy, the prosecutor questioned Rollings on whether he

knew the goods were stolen while in his possession:

Q: Okay. So you had this stuff and you knew the items

in that, including the trailer itself, were stolen; is that

right? 

A: Yes.

Q: Okay so you had this. How did you know it was

stolen? Mr. Hayes said, I stole this and - I stole this?

We got it from a certain area? 

A: I didn’t pay no money for it. He did tell me

eventually it was stolen.

Q: Okay. But from your past experience you knew it

was stolen; is that correct? He just gave you this trailer,

is that correct, with the merchandise - with the storm

windows and the doors; is that right?

A: Yes.

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Q: Okay. So you knew it was stolen. And it looked

like it had a lot of stuff in it; is that right?

A: Yes.

App. 223.

Thus, Rollings admits he became aware the trailer was stolen. He also

conceded the trailer was found on his property, showing he retained possession of

the trailer for at least some time after he found out it was stolen. This was

sufficient to prove a violation of § 659. United States v. Koran, 453 F.2d 144,

146 (10th Cir. 1972) (violation of § 659 can be proven by showing defendant

retained possession of the goods after becoming aware the goods were stolen).

But even assuming this exchange is not enough, any error in the colloquy

did not affect his substantial rights because Rollings was informed prior to the

plea colloquy of the intent element. See Ferrel, 603 F.3d at 763. Before the plea

hearing, Rollings received a copy of the Third Superseding Indictment, which

stated the required mens rea. See App. 117 (charging Rollings with intent to

convert to his own use chattels moving in interstate commerce “knowing the said

goods and chattels to be stolen”). That Rollings was provided with a copy of his

indictment “give[s] rise to a presumption that the defendant was informed of the

nature of the charge against him.” United States v. Weeks, 653 F.3d 1188, 1199

(10th Cir. 2011) (citation and internal quotation marks omitted). In addition, at

the plea hearing Rollings confirmed—reviewing the documents with the

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prosecutor—that he had read and understood the plea petition and plea agreement

and had reviewed both with his attorney. These facts convince us that Rollings

had adequate notice of the elements of the charges against him. See Weeks, 653

F.3d at 1199 (finding relevant that the defendant had read and understood both the

indictment and the plea agreement containing the charges against him).

As a final argument, Rollings contends the indictment’s description of the

elements of the charge was confusing and that his answers during the colloquy

cannot establish that Rollings received “‘real notice of the true nature of the

charge against him.’” Aplt. Br. at 45 (quoting Henderson v. Morgan, 426 U.S.

637, 645 (1976)). But in Henderson, the defendant was never formally charged

with the offense to which he pleaded guilty, and never at any point received

notice of the required intent element from an indictment or through his attorneys. 

See id. at 642–43, 46–47; see also Gigot, 147 F.3d at 1198 (finding plea

involuntary where the defendant was “never informed by the indictment or

otherwise of the elements of the offenses to which she pled guilty”). Here, in

contrast, Rollings was formally charged with the crime, had notice of the

elements of the offense from the indictment and plea agreement, and stated that

he understood the charges and that he had reviewed his plea petition and plea

agreement with his attorney.11 

11 Rollings also argues that he did not have true notice of the elements

because the indictment “confusingly includes two different mens rea elements

(continued...)

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Accordingly, any ambiguity regarding Rollings’s understanding of the

charges during the plea colloquy does not constitute plain error. 

III. Conclusion

Rollings cannot demonstrate that his appellate waiver was not knowing and

voluntary. We therefore GRANT the government’s motion to enforce the waiver

and dismiss the appeal. We also GRANT the government’s motion to supplement

the record and deny as moot Rollings<s motion for release pending appeal.

11(...continued)

without explaining the significance of either.” Aplt. Br. at 47. Rollings’s

indictment charges him with “knowingly possess[ing] and conceal[ing] with

intent to convert to [his] own use” property moving in interstate commerce

“knowing the said goods and chattels to be stolen.” App. 117. It is true that the

indictment’s description of the charge contains elements from two different parts

of § 659: stealing goods with intent to convert them and possessing stolen goods

knowing them to be stolen. But although it added an additional intent element,

the indictment’s description of the charge clearly encompasses a violation of

§ 659: receiving or possessing stolen goods knowing them to have been stolen. 

Rollings therefore cannot be said to have had no notice of the elements of the

charges against him, as in Henderson or Gigot.

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