United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 25, 2021 Decided March 1, 2022

No. 20-3025

UNITED STATES OF AMERICA,

APPELLEE

v.

ARNOLD JACKSON,

APPELLANT

Consolidated with 20-3046, 21-3035

Appeals from the United States District Court

for the District of Columbia

(No. 1:19-cr-00347-1)

Carmen D. Hernandez, appointed by the court, argued the 

cause and filed the briefs and appellant’s Memoranda of Law 

and Fact.

Daniel J. Lenerz, Assistant U.S. Attorney, argued the 

cause for appellee. With him on the brief and appellee’s 
2

Memorandum of Law and Fact were Elizabeth Trosman, 

Assistant U.S. Attorney at the time the brief was filed, and 

Elizabeth H. Danello and Peter S. Smith, Assistant U.S. 

Attorneys.

Before: RAO and WALKER, Circuit Judges, and SENTELLE, 

Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

SENTELLE.

SENTELLE, Senior Circuit Judge: Arnold Jackson pled 

guilty to possession with the intent to distribute cocaine base in 

the District of Columbia. After entering a plea agreement, he 

was sentenced to 48 months of imprisonment tailored to run 

consecutively to a then-anticipated, but not-yet-imposed,

prison sentence in another district court. While imprisoned, 

Jackson filed two motions for compassionate release under 18 

U.S.C. § 3582(c)(1)(A). The District Court for the District of 

Columbia denied both motions. Jackson appeals, arguing that 

the district court erred, both in ordering that his sentence run 

consecutively to a possible sentence and by denying his 

motions for compassionate release. Because we conclude that 

Jackson waived his right to appeal his sentence in his plea 

agreement and that the district court did not err in denying his 

motions for compassionate release, we affirm.

I. Background

In 2003, Jackson was convicted by a jury in the Western 

District of Virginia of conspiring to possess with intent to 

distribute fifty grams or more of cocaine base. The judge in 

that case originally sentenced him to life in prison. However, 

the judge later reduced that sentence to 192 months. Jackson 
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served his term of imprisonment and began serving a five-year 

term of supervised release.

While still on supervised release, Jackson was arrested 

in the District of Columbia in possession of 49 grams of 

cocaine, 27 grams of methamphetamine, about one gram each 

of heroin and oxycodone, and drug paraphernalia. Jackson was 

released pending trial, anticipating that he would cooperate 

with the government in other investigations. No substantial 

cooperation materialized, but Jackson did provide some helpful 

information to the government.

In recognition of his efforts to cooperate, the 

government offered Jackson a plea agreement pursuant to 

Federal Rule of Criminal Procedure 11(c)(1)(C). This 

agreement, once accepted by the sentencing judge, provided for

a 48-month sentence if Jackson pled guilty to possession with 

intent to distribute cocaine base. Jackson accepted the offer.

At Jackson’s sentencing hearing, his counsel raised the 

point that Jackson was also facing a supervised release 

revocation in the Western District of Virginia for the same 

conduct to which he was pleading guilty in the District of 

Columbia. Jackson requested that any sentence imposed run 

concurrently to any sentence he may receive for violating the 

terms of his supervised release in Virginia. The sentencing 

judge denied that request and sentenced Jackson to 48 months 

of imprisonment to run consecutively to any other sentence 

imposed. Jackson appealed that sentence to this court.

After being sentenced in the District of Columbia, 

Jackson was sentenced in the Western District of Virginia to 12 

months of imprisonment for violating the terms of his 

supervised release.
4

Jackson then moved his sentencing judge in the 

Western District of Virginia for compassionate release via 18 

U.S.C. § 3582(c)(1)(A) in light of the COVID-19 pandemic.

That motion was granted, but the order specifically noted that 

it “only addresse[d] the 12-month sentence imposed by [the 

Western District of Virginia] for Jackson’s supervised release 

violation.” United States v. Jackson, No. 5:02-cr-30020, 2020 

WL 2735724, *1 n.1 (W.D. Va. May 26, 2020). Because the 

Western District of Virginia order had no effect on the sentence 

imposed in the District of Columbia, Jackson remained in 

custody.

Following his successful pro se motion in Virginia, 

Jackson filed a motion in the District of Columbia for 

compassionate release. That motion was denied, and Jackson 

appealed. United States v. Jackson, 468 F. Supp. 3d 59, 70

(D.D.C. 2020).

Jackson then filed a second, pro se motion for 

compassionate release. That motion was denied for 

substantially the same reasons as the first motion for 

compassionate release, United States v. Jackson, No. 1:19-cr00347 (TNM), 2021 WL 1299439 (D.D.C. Apr. 7, 2021); more 

specifically, for not having shown extraordinary and 

compelling reasons justifying his release. Following the 

second denial, Jackson moved the court to reconsider the

second motion for compassionate release. That motion was 

also denied. Jackson appealed once again.

Jackson’s three appeals were consolidated without 

objection in this court.
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II. The Consecutive Sentence

We consider first Jackson’s claim that the District of 

Columbia district judge did not have the authority to make his 

48-month sentence consecutive to his then-anticipated, but notyet-imposed, sentence for violating the terms of his supervised 

release in the Western District of Virginia. That issue has not

previously been determined by this Circuit. However, before 

proceeding with the merits, we must address the government’s 

argument that Jackson waived his right to appeal his sentence 

when he entered the plea agreement with the government.

In that plea agreement, Jackson agreed to plead guilty 

to unlawful possession with intent to distribute a detectable 

amount of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), 

841(b)(1)(C). The agreement was entered into under Rule 

11(c)(1)(C) of the Federal Rules of Criminal Procedure. If a 

sentencing judge accepts a Rule 11(c)(1)(C) plea agreement, 

the judge has agreed to impose the sentence agreed to in the 

plea agreement. Jackson and the government agreed to a 

sentence of 48 months of incarceration followed by three years 

of supervised release. The agreement did not refer to any other,

not-yet-imposed sentence.

As a part of this plea agreement, Jackson waived many 

of his constitutional and statutory rights, including most of his 

appeal rights. In the words of the plea agreement, Jackson 

“agree[d] to waive the right to appeal the sentence in this case, 

including but not limited to any term of imprisonment, fine, 

forfeiture, award of restitution, term or condition of supervised 

release . . . .” Jackson retained the right to appeal if the 

sentence was “above the statutory maximum or guidelines 

range determined by the Court,” and the right to “appeal on the 

basis of ineffective assistance of counsel, but not to raise on 
6

appeal other issues regarding the conviction or sentence.” 

Supplemental Appendix (SA) 8.

Jackson contends that the plea agreement does not 

foreclose his appeal for two reasons. First, Jackson argues that 

the sentencing judge did not properly advise him of the terms 

of the plea agreement, and therefore his entry into the 

agreement was neither knowing, intelligent, nor voluntary. 

Next, Jackson argues that the plea agreement is ambiguous as 

to whether he may appeal the imposition of a consecutive 

sentence and that ambiguous plea agreements should be 

interpreted against the drafter, i.e., the government.

A.

A knowing, intelligent, and voluntary waiver of the 

right to appeal may generally be enforced. United States v. 

Adams, 780 F.3d 1182, 1183 (D.C. Cir. 2015). To ensure that 

a defendant understands the terms of a plea agreement, Rule 

11(b) of the Federal Rules of Criminal Procedure requires a 

judge accepting a guilty plea to address the defendant 

personally in open court and “inform the defendant of, and 

determine that the defendant understands,” among other things,

“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).

It is uncontested that in this case, the judge accepting 

Jackson’s guilty plea did not fully comply with the terms of 

Rule 11(b)(1)(N), as he did not go over the appeal rights that 

Jackson was waiving by entering into the agreement. 

However, a “Rule 11(b)(1)(N) error at the plea hearing does 

not affect the defendant’s substantial rights if the defendant still 

knowingly, intelligently, and voluntarily waived the right to 

appeal.” United States v. Lee, 888 F.3d 503, 504–05 (D.C. Cir. 
7

2018). “To determine whether the defendant knowingly, 

intelligently, and voluntarily waived the right to appeal, the 

court of appeals must examine the entire record, including both 

the written plea agreement and the plea hearing.” Id. at 505.

In concluding that the entire record evidenced that the 

defendant’s waiver was knowing, voluntary, and intelligent 

despite a Rule 11(b)(1)(N) error, the Lee court relied on the

following: the “crystal clear” language of the waiver of a right 

to appeal the imposition of an 18-month sentence; the 

defendant’s signature on the plea agreement; that the plea 

agreement stated that the defendant had read and fully 

understood the agreement, discussed it with counsel, and was 

entering the agreement voluntarily; that he was represented by

an experienced defense attorney; that it is standard practice for 

defense counsel to discuss appeal waivers with clients prior to 

plea hearings; that the defendant reaffirmed to the court that he 

had carefully read the agreement and discussed it with counsel 

and did not have any questions; that he stated that he was 

satisfied with his counsel; and that there was no record 

evidence to the contrary. Id. at 508.

While not all of the factors relied upon by the Lee court 

are present in this case, most of them are. Jackson’s signature 

is on the plea agreement and the plea agreement states that 

Jackson “read every page of this Agreement,” discussed it with 

his attorney, and that he entered the agreement voluntarily. SA 

11. Jackson stated on the record to the judge accepting his 

guilty plea that he was satisfied with the services of his counsel. 

Further, Jackson confirmed to the judge at his plea hearing that 

he had read the plea agreement carefully, that he understood it, 

and had sufficient time to discuss the plea agreement with his 

counsel. 
8

At the plea hearing, Jackson’s counsel was asked to 

summarize the terms of the plea agreement and noted on the 

record that the agreement “sets out the appeal rights that he’s 

waiving. The only appeal he retains is if the Court imposes [a]

sentence above . . . the statutory maximum or guideline range 

determined by the Court.” Jackson was asked if he had “any 

confusion or questions about this agreement” that he would like 

to ask his attorney or the presiding judge; he stated that he did 

not. Also, like in Lee, Jackson was represented by an 

experienced criminal defense attorney; Jackson’s attorney had 

over 25 years of experience representing criminal defendants. 

The language of Jackson’s plea agreement is 

unambiguous as to which rights he waived when he entered 

into it, making any error in the plea colloquy harmless. In Lee, 

the defendant sought to appeal the length of his sentence 

despite his clear waiver of the right to appeal a sentence within 

the United States Sentencing Guidelines. Lee, 888 F.3d at 506. 

In this case, it is less “crystal clear” than it was in Lee that 

Jackson waived the right to appeal a consecutive sentence 

because the terms consecutive and concurrent do not appear in 

the waiver section of the plea agreement. However, the plea 

agreement is clear that he agreed to waive “the right to appeal 

the sentence in this case.” This, in combination with the 

multiple assurances in writing and in open court that Jackson 

understood the plea agreement and was entering it voluntarily,

renders any error in the presiding judge’s Rule 11(b)(1)(N) 

colloquy harmless.

Having reviewed the record in its entirety, we conclude 

that Jackson knowingly, intelligently, and voluntarily entered 

into the plea agreement with the government and that the 

waiver of his appeal rights is enforceable.
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B.

Jackson further argues that even if he did knowingly, 

intelligently, and voluntarily enter into the plea agreement, it is 

ambiguous as to whether the plea agreement waived his right 

to appeal the imposition of a consecutive sentence.

We ordinarily dismiss an appeal falling within the 

scope of a valid appeal waiver, see, e.g., United States v. 

Adams, 780 F.3d 1182, 1183 (D.C. Cir. 2015), but “we will not 

bar the door to a criminal defendant’s appeal if his waiver only 

arguably or ambiguously forecloses his claims,” United States 

v. Hunt, 843 F.3d 1022, 1027 (D.C. Cir. 2016). A plea 

agreement is, at bottom, a contract between the criminal 

defendant and the government. Therefore, we adhere to the 

principals of contract law in the interpretation of plea 

agreements. Id. “Ambiguity in a plea agreement, as in any 

other type of contract, is construed against the drafter.” Id. 

(citing United States v. Henry, 758 F.3d 427, 431 (D.C. Cir. 

2014)). An ambiguous appeal waiver cannot be knowingly, 

intelligently, and voluntarily agreed to. See id. at 1027.

Jackson primarily relies on Hunt to argue that the plea 

agreement is ambiguous as to whether it includes a waiver of 

his right to appeal the imposition of a consecutive sentence. In 

Hunt, the defendant was sentenced to 62 months of 

imprisonment and five years of supervised release with the 

special condition that he stay away from a particular housing 

complex in Southeast D.C. He appealed, challenging the 

special condition of supervised release imposed by the district 

court. Hunt, 843 F.3d at 1024.

The defendant in Hunt had also entered a plea 

agreement that waived some of his appellate rights with respect 

to his sentence. He agreed to waive “the right to appeal the 

sentence in this case, including any term of imprisonment, fine, 
10

forfeiture, award of restitution, term of supervised release, 

authority of the Court to set conditions of release, and the 

manner in which the sentence was determined,” except to the 

extent that the court sentenced him above the statutory 

maximum or guidelines range determined by the court. Hunt, 

843 F.3d at 1025.

The Hunt court concluded that by waiving his right to 

appeal any “term of supervised release,” id. at 1028 (emphasis 

added), the defendant “did not necessarily give up the right to 

appeal a condition of such release,” id. Holding that the plea 

agreement was ambiguous and that this ambiguity was 

exacerbated by incorrect statements by the presiding judge 

during the plea colloquy about what was appealable, the Hunt 

court proceeded to evaluate the defendant’s claim on the 

merits. Id. at 1028–29.

The ambiguity in Hunt’s plea agreement is not present 

in Jackson’s. Unlike in Hunt, the list of waivers in Jackson’s 

plea agreement includes “the right to appeal the sentence in this 

case, including but not limited to any term of imprisonment

. . . .” SA 8 (emphasis added). The plea agreement’s use of 

the phrase “including but not limited to” eliminates any 

ambiguity as to whether the scope of the waiver is limited in 

any fashion by the list of examples that follows.

The Hunt court held that the word “term” in a plea 

agreement refers to “duration” rather than a condition. Id. at 

1028 (comparing Black’s Law Dictionary 1698 (10th ed. 2014) 

with Webster’s Third New International Dictionary, 

Unabridged, 2358 (1993)). Unlike in Hunt, Jackson is 

appealing the duration, or term of his sentence. Whether a 

sentence runs consecutively or concurrently to another 

sentence is inherently determinative of the duration of that 

sentence. 
11

Further, the plea agreement explicitly carves out two 

aspects of a potential sentence that Jackson did retain the right 

to appeal: if the sentence was above the statutory maximum or 

if it was above the guidelines range as determined by the court. 

Under the canon of contract interpretation that inclusio unius 

est exclusio alterius, it is clear from the language of the 

agreement that Jackson has waived the right to appeal all 

aspects of his sentence unless the appeal comes within one of 

those two exceptions. 

Finally, the confusion created by the plea colloquy in 

Hunt in which the presiding judge may have misled the 

defendant about what appeal rights he retained did not occur in 

this case. As discussed above, the record supports that Jackson 

knowingly, intelligently, and voluntarily entered into this plea 

agreement. There is no reasonable way to interpret Jackson’s 

plea agreement as exempting from the waiver the right to 

appeal whether his prison sentence will run consecutively or 

concurrently to another sentence.

In sum, we hold that Jackson unambiguously waived 

his right to appeal the imposition of a consecutive sentence and 

that he knowingly, intelligently, and voluntarily made that 

waiver. Therefore, we do not reach the merits of Jackson’s 

appeal of his sentence.

III. The Compassionate Release Motions

After being sentenced to 12 months in prison for 

violating the terms of his supervised release in the Western 

District of Virginia, Jackson filed for compassionate release in 

that district via 18 U.S.C. § 3582(c)(1)(A). The Virginia 

district court granted the motion, noting that his order 

addressed only “the 12-month sentence imposed by [the 
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Western District of Virginia] for Jackson’s supervised release 

violation.” United States v. Jackson, No. 5:02-cr-30020, 2020 

WL 2735724, *1 n.1 (W.D. Va. May 26, 2020). Because of 

Jackson’s sentence in the District of Columbia, he remained in 

custody.

Jackson then filed a motion for compassionate release

in the District Court for the District of Columbia. The district 

court denied that motion. Months later, Jackson once again 

moved for compassionate release. That motion and a 

subsequent motion for reconsideration were both denied. 

Jackson, now with counsel, appeals the denial of the two 

separate motions for compassionate release arguing that the 

denials were an abuse of the judge’s discretion. 

We note that the government correctly asserts that 

Jackson’s appeal from the denial of his second motion is 

untimely. While we agree with the government that this is the 

case, that defect is not jurisdictional. Since the arguments 

asserted with respect to that ruling are intertwined with those 

asserted with respect to the denial of his first motion, we will 

allude to both decisions in the following discussion.

Compassionate release is created and governed by 18 

U.S.C. § 3582(c)(1)(A). That statute authorizes the district 

court to grant compassionate release under statutory 

circumstances. The principal requirement of the statute is that 

the defendant must present “extraordinary and compelling 

reasons [that] warrant such a reduction[.]” § 3582(c)(1)(A)(i). 

It also requires that the judge, in making such decision, act 

consistently with the sentencing requirements of section 

3553(a). § 3582(c)(1)(A). It further requires that the grant of 

compassionate release must be consistent “with applicable 

policy statements issued by the Sentencing Commission.” 

§ 3582(c)(1)(A)(ii). We review the district court’s decision for 
13

“abuse of discretion.” United States v. Long, 997 F.3d 342, 352 

(D.C. Cir. 2021). However, arguments that were not raised 

before the district court below are reviewed for plain error. Id.

at 353.

In this case, the district judge concluded that the 

defendant had not presented any extraordinary and compelling 

reason justifying his release. The defendant’s appeal is based 

on the theory that the COVID-19 pandemic created such an 

extraordinary and compelling reason. He offered no real 

evidence that the presence of the disease was greater in his 

place of confinement than anywhere else. More importantly, it 

is difficult to say that the district judge abused his discretion by 

finding that a pandemic affecting not only the entire prison 

population, but the entire world, does not constitute an 

extraordinary and compelling reason. Presumably, if it did, we 

would have solved the overcrowding of prisons, as any prisoner 

could come asking for compassionate release. 

Jackson attempts to circumvent the weakness of his 

claim of extraordinary and compelling reasons by stating that 

he suffers from obesity and sleep apnea and that these 

conditions put him at higher risk for serious illness should he 

contract COVID-19. Neither of these is an extraordinary 

circumstance. It certainly is not an abuse of discretion by the 

district judge not to have been convinced by this argument. 

Indeed, it is sometimes said that the nation suffers from an 

epidemic of obesity. The Obesity Epidemic, CTRS. FOR DISEASE 

CONTROL & PREVENTION, https://www.cdc.gov/cdctv/disease

andconditions/lifestyle/obesity-epidemic.html; Kumanyika & 

Dietz, Solving Population-wide Obesity, NEW ENG. J. MED.

(Dec. 3, 2020). 

Appellant raises specific objections to the district 

judge’s decisions. First, the appellant claims that the court 
14

erred in expressing the decisions’ consistency with what the 

court deemed the applicable policy statement from the 

Sentencing Commission. Appellant correctly points out that 

we have since determined that there is no applicable policy 

statement, and there was none at the time of the denial of his 

motion. See Long, 997 F.3d at 355. However, this argument 

was not raised below and is therefore reviewed under the plain 

error standard. Perhaps there may be a plain error in failure to 

anticipate a change in the law. See, e.g., id. at 357. But this is 

not such a case. Plain error requires that the alleged error be 

such as could have affected a defendant’s “substantial rights.”

United States v. Brown, 808 F.3d 865, 871 (D.C. Cir. 2015). 

The district court made plain that its decision was not based on 

the policy statement, but simply pointed out that it was 

consistent with what the court believed to be an applicable 

statement. Obviously then, it would not have affected the 

result. 

Finally, the district court’s rulings with respect to the 

compassionate release motions must be consistent with the

§ 3553(a) sentencing factors. 18 U.S.C. § 3582(c)(1)(A). This 

included an evaluation by the district court of the continuing 

dangerousness of the movant. Jackson asserts that the district 

court erred in relying on his dangerousness at the time of his 

earlier criminal history. This hardly appears to be error. Where 

a defendant has reverted to his dangerous criminal ways after 

having faced a life sentence that was later reduced to a term of 

years, it is hardly an abuse of discretion for a district judge not 

to be convinced that he is no longer a dangerous person.

IV. Conclusion

In sum, we affirm the judgment on sentencing and the 

orders on both motions for compassionate release.