RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 24a0183p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DON WOODSON ELLIS,

Defendant-Appellant.

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No. 23-3147

Appeal from the United States District Court for the Northern District of Ohio at Toledo.

No. 3:18-cr-00532-1—Jeffrey James Helmick, District Judge.

Argued: June 11, 2024

Decided and Filed: August 16, 2024

Before: WHITE, STRANCH, and MURPHY, Circuit Judges.

_________________

COUNSEL

ARGUED: Stephenie N. Lape, STEPHENIE N. LAPE, PLLC, Cincinnati, Ohio, for Appellant. 

Matthew D. Simko, UNITED STATES ATTORNEY’S OFFICE, Toledo, Ohio, for Appellee. 

ON BRIEF: Stephenie N. Lape, STEPHENIE N. LAPE, PLLC, Cincinnati, Ohio, for 

Appellant. Matthew D. Simko, UNITED STATES ATTORNEY’S OFFICE, Toledo, Ohio, for 

Appellee.

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OPINION

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MURPHY, Circuit Judge. After carjacking a gas-station customer and robbing a bank, 

Don Ellis pleaded guilty to several offenses. He admitted that he had, among other things, twice 

used or carried a firearm during and in relation to a crime of violence in violation of 18 U.S.C. 

§ 924(c). On appeal, Ellis argues that the district court should have allowed him to withdraw his 

>
No. 23-3147 United States v. Ellis Page 2

guilty plea. He also argues that his indictment failed to allege a § 924(c) offense. And he argues 

that the court constructively amended the indictment to fix this error. But all three claims suffer 

from the same problem: Ellis waived his right to appeal as part of his plea agreement. He 

nevertheless suggests that we may hear these claims because he did not knowingly plead guilty. 

He adds that the alleged indictment error qualifies as a jurisdictional defect that he could not 

waive. Because both arguments lack merit, we grant the government’s motion to dismiss this 

appeal.

I

On August 13, 2018, Ellis robbed a customer of a Valero gas station in Toledo, Ohio. 

After threatening this customer with a gun, Ellis stole his Pontiac Grand Prix and $200 in cash. 

Later that day, Ellis robbed a Fifth Third Bank. But a bank teller hid a GPS tracker in the money 

that Ellis took. The police used this tracker to find Ellis. He led them on a high-speed chase, 

which ended when he crashed the Grand Prix. Officers uncovered a handgun and the stolen bank 

funds in the stolen car. They arrested Ellis. After spending two days in jail, he escaped by 

pretending to be another inmate. The police found him five days later at a Michigan hotel.

This conduct led a federal grand jury to indict Ellis on six counts. The grand jury 

charged him with carjacking for stealing the Grand Prix from the gas-station customer, see 

18 U.S.C. § 2119(1), bank robbery for stealing the money from the Fifth Third Bank, see id.

§ 2113(a), and escape for absconding from the jail, see id. § 751(a). Because a state court had 

previously convicted Ellis of bank robbery, the grand jury also charged him with unlawfully 

possessing a firearm as a felon. See id. § 922(g)(1). Lastly, the grand jury charged Ellis with 

two counts of what is known as a “§ 924(c)” offense: using or carrying a firearm during and in 

relation to a crime of violence. See id. § 924(c). The predicate “crime of violence” for Ellis’s 

first § 924(c) count was the carjacking and the predicate crime for his second § 924(c) count was 

the bank robbery.

Ellis entered into a plea agreement with the government under Federal Rule of Criminal 

Procedure 11(c)(1)(C). He agreed to plead guilty to all six counts. He also agreed to waive his 

right to appeal his conviction and sentence except in limited circumstances. In exchange, the 
No. 23-3147 United States v. Ellis Page 3

government agreed to propose a below-guidelines sentence of 201 months’ imprisonment. If the 

court rejected this proposed sentence, however, Ellis would have the right to withdraw his plea. 

See Fed. R. Crim. P. 11(c)(5)(B).

The district court held a change-of-plea hearing. At this hearing, it explained the rights 

that Ellis would waive by pleading guilty, the nature of his offenses, and the terms of his plea 

agreement. Ellis signed the agreement and pleaded guilty. But the court did not accept the plea 

agreement at this time. It instead chose to wait until after it had reviewed Ellis’s presentence 

report to determine if the parties’ agreed prison term fit his crimes. See Fed. R. Crim. P. 

11(c)(1)(C), (3)(A).

Over four months later (but before sentencing), Ellis moved to withdraw his plea. As his 

“fair and just reason” for this withdrawal, Ellis argued that he had not realized that his plea 

agreement’s appeal waiver would bar him from pursuing “possible appellate issues” about the 

§ 924(c) charges. Mot., R.68, PageID 471–72 (quoting Fed. R. Crim. P. 11(d)(2)(B)). The 

district court denied his motion. It reasoned that Ellis had waited months to file the motion even 

though it had told him at the change-of-plea hearing that he would generally waive his right to 

appeal.

At sentencing, Ellis raised two objections. He renewed his request to withdraw his plea. 

He also argued that Count 4 of the indictment—the § 924(c) charge connected to his bank 

robbery—did not allege a crime. Under our caselaw, § 924(c)’s language contains two different 

offenses: both “us[ing] or carr[ying] a firearm” “during and in relation to” a “crime of violence” 

and “possess[ing] a firearm” “in furtherance of” a “crime of violence[.]” 18 U.S.C. 

§ 924(c)(1)(A); see United States v. Combs, 369 F.3d 925, 930–33 (6th Cir. 2004). Yet Count 4 

mixed and matched the language of these two crimes. Its title included the verb “possessing” in 

a caption that otherwise seemed to delineate the “using or carrying” offense: “Using, Carrying, 

or Possessing a Firearm During and in Relation to Crime of Violence, in violation of 18 U.S.C. 

§ 924(c)[.]” Indictment, R.10, PageID 44. Its body garbled the two offenses, too. It charged 

Ellis with “us[ing] or carry[ing] a firearm, or, in furtherance of such crime, possess[ing] a 

firearm, during and in relation to a crime of violence[.]” Id.
No. 23-3147 United States v. Ellis Page 4

The district court rejected Ellis’s arguments. It described his indictment claim as raising 

a “technical error” that Ellis should have asserted earlier. Sent. Tr., R.85, PageID 628. 

Regardless, the court added that the plea agreement had fixed any problem by listing the crime as 

“[u]sing or [c]arrying a [f]irearm [d]uring and in [r]elation” to the bank robbery (not possessing a 

firearm in furtherance of it). Plea Agreement, R.78, PageID 591.

The court thus turned to the sentence. It approved the presentence report’s calculation 

that Ellis had a guidelines range of 214 to 231 months’ imprisonment. But the court finally 

accepted the plea agreement. It sentenced Ellis to the below-guidelines term of 201 months’ 

imprisonment.

II

On appeal, Ellis raises two prior claims and one new one. He renews his argument that 

the district court should have allowed him to withdraw his guilty plea. And he renews his 

argument that Count 4’s § 924(c) charge failed to state an offense. Yet he now argues that the 

plea agreement constructively amended the indictment by clarifying this § 924(c) charge. In 

response, the government has moved to dismiss Ellis’s appeal as barred by his plea agreement’s 

appeal waiver. We agree that the appeal waiver applies to Ellis’s claims, so we need not decide 

any of them on the merits.

When defendants enter into plea agreements, they agree to waive various constitutional 

rights, including their right to a jury trial and right against self-incrimination. See United States 

v. Toth, 668 F.3d 374, 377 (6th Cir. 2012); see also United States v. Mezzanatto, 513 U.S. 196, 

201 (1995). Plea agreements also routinely waive a defendant’s right to appeal a conviction and 

sentence. See, e.g., United States v. Milliron, 984 F.3d 1188, 1192–93 (6th Cir. 2021); Toth, 668 

F.3d at 378. These appeal waivers can benefit both sides. Defendants can extract useful 

“concessions” from prosecutors—say, a concession not to seek some sentencing enhancement—

as the price for giving up the right to appeal. Toth, 668 F.3d at 379. Prosecutors can preserve 

their limited public resources by avoiding the costs of defending against the appeal. Id. But 

prosecutors would not agree to this exchange if appellate courts regularly allowed defendants to 

violate the agreement by appealing any and every issue. So our cases have recognized that we 
No. 23-3147 United States v. Ellis Page 5

should enforce an appeal waiver according to its terms to “give effect to the intent of the parties 

as expressed by the plain language in the plea agreement.” United States v. Beals, 698 F.3d 248, 

256 (6th Cir. 2012). As one relevant example, we have repeatedly held that an appeal waiver 

barred the appeal of a denial of a motion to withdraw a guilty plea. See Milliron, 984 F.3d at 

1193; United States v. Detloff, 794 F.3d 588, 592–93 (6th Cir. 2015); Toth, 668 F.3d at 377–79.

At the same time, appeal waivers do not bar all appeals. To the contrary, defendants who 

enter them may seek to appeal on a variety of grounds. Consider four examples. Some 

defendants have asserted that their appeal waiver’s terms did not reach their specific appellate 

argument. See, e.g., Beals, 698 F.3d at 256; Toth, 668 F.3d at 378. Other defendants have 

argued that the district court did not properly accept their guilty plea because it failed to advise 

them of the appeal waiver’s “terms” under Federal Rule of Criminal Procedure 11. Fed. R. 

Crim. P. 11(b)(1)(N); see, e.g., Detloff, 794 F.3d at 592–93. Still other defendants have argued 

that the appellate court could not constitutionally enforce the appeal waiver because they did not 

knowingly and voluntarily plead guilty. See, e.g., United States v. Couch, 2024 WL 3069357, at 

*4–5 (6th Cir. June 20, 2024); United States v. Holdbrook, 2024 WL 124735, at *3 (6th Cir. Jan. 

11, 2024). And still others have claimed that the appeal waiver could not apply to their 

challenge because it implicated the district court’s subject-matter jurisdiction—a type of 

challenge that defendants cannot waive. See United States v. Moran, 70 F.4th 797, 802 (4th Cir. 

2023); see also United States v. McGhee, 854 F.2d 905, 907 (6th Cir. 1988); United States v. 

Meacham, 626 F.2d 503, 510 (5th Cir. 1980).

Ellis “makes no effort” to raise the first two of these examples as the basis for this appeal. 

Milliron, 984 F.3d at 1193. That is, he does not argue that his three appellate claims fall outside 

the scope of his appeal waiver. And he does not argue that the district court violated Rule 11. 

So we need not consider these issues. Instead, Ellis raises only the second two examples. He 

says that he did not knowingly and voluntarily plead guilty. And he says that one of his claims 

implicated the district court’s subject-matter jurisdiction. We will consider each argument in 

turn.

Knowing and Voluntary Plea. The Due Process Clause prohibits defendants from 

pleading guilty—and from waiving their constitutional rights—unless they do so in a “knowing 
No. 23-3147 United States v. Ellis Page 6

and voluntary” manner. Parke v. Raley, 506 U.S. 20, 28–29 (1992); see Brady v. United States, 

397 U.S. 742, 748 (1970). Federal Rule of Criminal Procedure 11 seeks to guarantee knowingand-voluntary pleas by requiring district courts to hold plea hearings. See Fed. R. Crim. P. 11(b). 

At these hearings, courts must ensure that defendants understand the nature of their crimes and 

the rights they will waive by pleading guilty. See id.; United States v. Day, 2022 WL 17547518, 

at *2–3 (6th Cir. Dec. 9, 2022); United States v. Pitts, 997 F.3d 688, 701 (6th Cir. 2021). Once a 

district court satisfies this duty, though, a defendant’s admissions at the plea hearing serve as a 

“formidable barrier” to later claims that the defendant misunderstood something about the plea. 

Day, 2022 WL 17547518, at *2 (quoting Blackledge v. Allison, 431 U.S. 63, 74 (1977)).

Ellis has not overcome this formidable barrier. Both his “written plea agreement” and his 

“plea colloquy” show that he understood his plea’s effects. Holdbrook, 2024 WL 124735, at *3. 

Indeed, the district court dedicated nearly an hour at the plea colloquy to explaining “every 

paragraph” of the plea agreement to Ellis. Plea Tr., R.72, PageID 519. It proceeded through the 

agreement page by page and asked Ellis to initial each page to confirm that he understood its 

terms. The court, for example, took time to explain Ellis’s right to a jury trial and the subsidiary 

rights that come with it (such as his right to confront witnesses). Ellis acknowledged these rights 

and initialed the relevant page of his plea agreement. Likewise, the court took time to explain 

the offenses that Ellis would plead guilty to, including their elements and punishments. It also 

explained that the parties had agreed on a sentence of 201 months and that it must sentence him 

to this amount if it approved the plea agreement. Ellis again confirmed that he knew the nature 

of his offenses and his likely punishment.

Most relevant here, the court spent an entire page of the transcript discussing the 

paragraph of Ellis’s plea agreement entitled “Waiver of Appeal and Post-Conviction Attack[.]” 

Plea Agreement, R.78, PageID 594; Plea Tr., R.72, PageID 543–44. This paragraph noted that 

Ellis had certain rights to appeal his “conviction or sentence” and that, with limited exceptions, 

he “expressly and voluntarily waive[d] those rights[.]” Plea Agreement, R.78, PageID 594. 

When summarizing this paragraph, the court said that “if you enter guilty pleas to these charges, 

and I ultimately . . . accept them,” it will then be “too late” for Ellis to claim that he wants to go 

to trial because Ellis waived “that right to trial and those attendant rights[.]” Plea Tr., R.72, 
No. 23-3147 United States v. Ellis Page 7

PageID 544. The court then explained the appeal waiver’s “exceptions,” stating that Ellis could 

“appeal” if the court sentenced him above the agreed term or if he raised ineffective-assistance or 

prosecutorial-misconduct claims. Id. But it reiterated that “otherwise, you have to assume, if 

you do this and I accept this, that you’re stuck with those guilty pleas and you are going to get 

201 months.” Id. Ellis answered “Yes” that he understood this point and initialed both pages 

containing the appeal waiver. Id., PageID 544–45; cf. Holdbrook, 2024 WL 124735, at *4. This 

“yes” answer generally suffices to show that a defendant acted in a knowing and voluntary way. 

See United States v. Jones, 403 F.3d 817, 823 (6th Cir. 2005) (citing United States v. Walker, 

160 F.3d 1078, 1096 (6th Cir. 1998)).

To be sure, we could see a potential argument that the district court should have better 

differentiated the waiver of Ellis’s appeal rights from the waiver of his trial rights. The court at 

times lumped all these rights together when discussing the appeal waiver. Yet Ellis does not 

challenge anything in this appeal-waiver colloquy, so we flag the issue only as a cautionary note.

Ellis instead focuses our attention elsewhere. According to Ellis, he did not knowingly 

plead guilty because he and his lawyer did not spend enough time going over the plea agreement. 

To support this theory, Ellis points to his statement at the change-of-plea hearing noting that he 

“breezed through” the agreement before the hearing. Plea Tr., R.72, PageID 519. 

This argument has both legal and factual problems. Legally, Ellis cites no authority for 

the rule that defendants must consult counsel for any preordained period before they can enter a 

knowing plea. Cf. Iowa v. Tovar, 541 U.S. 77, 81 (2004). Factually, Ellis said later in the plea 

colloquy that he had plenty of time to speak with his attorney, that he had told her his “side of 

the story,” that she had explained what the government must prove to convict him, and that he 

was “satisfied with her advice and competence as [his] lawyer in this case[.]” Plea Tr., R.72, 

PageID 548–49. He also never asked for time to review the agreement with his attorney, even 

though the district court told him that it would “give [him] as much time as [he] need[ed]” if he 

“want[ed] to talk to” counsel at any point during the change-of-plea hearing. Id., PageID 516. 

Without more, then, Ellis’s passing statement cannot overcome the “formidable” presumption 

created by the plea colloquy that he knowingly pleaded guilty. Blackledge, 431 U.S. at 74.
No. 23-3147 United States v. Ellis Page 8

Even if he generally entered a knowing and voluntary plea, Ellis next claims, he did not 

understand the specific appeal waiver. He relies on an after-the-fact statement in his motion to 

withdraw his guilty plea. In that motion, Ellis’s counsel noted that Ellis had told her “that he was 

not fully aware of the agreement’s consequences to his right to contest future possible appellate 

issues related to the [§ 924(c)] charges.” Mot., R.68, PageID 472. Yet this conclusory and 

unsworn hearsay in a brief does not even count as evidence—let alone evidence that could rebut 

the “formidable” presumption that he understood his rights. Blackledge, 431 U.S. at 74. 

One last point. Ellis hints that his trial lawyer might have provided constitutionally 

“ineffective” assistance if the lawyer did, in fact, skim over the plea agreement with him. Reply 

Br. 2–3. This “ineffective assistance” claim would fall within one of the exceptions to his appeal 

waiver. Plea Agreement, R.78, PageID 595. But when defendants need evidentiary support for 

their ineffective-assistance claims, we generally channel those claims to the venue in which they 

can present this evidence: post-conviction proceedings under 28 U.S.C. § 2255. See Day, 2022 

WL 17547518, at *4 (citing Massaro v. United States, 538 U.S. 500, 504–05 (2003)); see also 

United States v. Tudor, 796 F. App’x 267, 270 (6th Cir. 2019). This rule applies here. The 

record leaves unclear how much time Ellis’s lawyer spent discussing this plea agreement with 

him. So if Ellis seeks to pursue this claim, he should file an evidence-backed § 2255 motion.

Jurisdiction. Even if Ellis knowingly and voluntarily waived his right to appeal, he 

insists that the waiver cannot validly bar him from raising the alleged indictment error. Recall 

Ellis argues that his indictment failed to adequately charge a § 924(c) offense because it mixed 

the language for the using-or-carrying-a-firearm offense with the language for the possessing-afirearm offense. See Combs, 369 F.3d at 930–33. And Ellis points out that our 1988 decision in 

McGhee noted that a guilty plea does not waive an “objection that the indictment fails to charge 

an offense[.]” 854 F.2d at 907 (quoting Meacham, 626 F.2d at 510). The Fifth Circuit decision 

on which we relied in McGhee, in turn, reasoned that “a guilty plea does not act as a waiver of 

jurisdictional defects such as an indictment’s failure to charge an offense.” Meacham, 626 F.2d 

at 510.

Ellis’s argument lacks merit because the Supreme Court has since rejected the premise 

that indictment errors deprive district courts of subject-matter jurisdiction. See United States v. 
No. 23-3147 United States v. Ellis Page 9

Cotton, 535 U.S. 625, 629–31 (2002). In Cotton, all agreed that the indictment failed to 

adequately allege the charged drug offense because it omitted the quantity element. See id. at 

632. Nevertheless, the Court held that this failure did not deprive the district court of its subjectmatter jurisdiction over the offense. Id. at 631. According to the Court, the claim that an 

indictment fails to adequately charge an offense “goes only to the merits of the case,” not to the 

district court’s power to adjudicate it. Id. (quoting Lamar v. United States, 240 U.S. 60, 65 

(1916)). To be sure, Cotton concerned only an indictment’s omission of a sentence-enhancing 

element (the quantity of drugs involved). Id. at 632. Yet we have since interpreted its reasoning 

to apply to indictment omissions more broadly, such as the failure to include other elements of 

the charged offense. United States v. Hobbs, 953 F.3d 853, 856–57 (6th Cir. 2020). As a result, 

criminal defendants can both forfeit and waive this type of indictment challenge. See Cotton, 

535 U.S. at 630–31.

This holding conflicts with McGhee’s earlier conclusion that a defendant cannot waive 

the claim that the indictment failed to allege an offense. 854 F.2d at 907. In fact, the Fifth 

Circuit already recognized that Cotton overruled Meacham—the decision on which we relied in 

McGhee. See United States v. Scruggs, 714 F.3d 258, 263 (5th Cir. 2013). Like the Fifth 

Circuit, we now hold that Cotton overruled McGhee, too. Under Cotton’s logic, the district court 

had jurisdiction in this case because the indictment charged Ellis with committing an “offense[] 

against the laws of the United States.” 18 U.S.C. § 3231. And Ellis’s claim that the indictment 

failed to adequately allege a violation of § 924(c) “goes only to the merits of the case.” Cotton, 

535 U.S. at 631 (quoting Lamar, 240 U.S. at 65). Ellis thus could waive this argument by 

entering into a plea agreement with an appeal waiver that covered it. Cf. Fed. R. Crim. P. 

12(b)(3)(B)(v).

For all these reasons, we grant the government’s motion to dismiss this appeal.