At page 674 Determining sufficiency of appellate waiver under rule 11(b)(1)(N)27 citing casesexplanation of the appellate waiver provision by prosecutor in summary satisfied Rule 11
- United States v. Johnson, 467 F.3d 559 (6th Cir. 2006).published ([E]ven if we were to assume that the district court’s failure to specifically discuss the appellate waiver with defendant in open court constituted a technical violation . . . the failure constitutes harmless error.)
- United States v. Raysheen Sharp, 442 F.3d 946 (6th Cir. 2006).published (Indeed, Murdock itself indicated a prosecutor in summarizing the key elements of the agreement might adequately address the waiver.)
- United States v. Michael Osborn Thomas, 155 F.4th 855 (6th Cir. 2025).published United States v. Wilson, 438 F.3d 672, 674 (6th Cir. 2006).
- United States v. Brian Miller, No. 18-3131 (6th Cir. Oct. 11, 2018).unpublishedSee Sharp, 442 F.3d at 950–52; see also United States v. Robinson, 455 F.3d 602, 610 (6th Cir. 2006); United States v. Wilson, 438 F.3d 672, 674 (6th Cir. 2006).
- United States v. Lawrence Wilson, 675 F. App'x 526 (6th Cir. 2017).unpublished (holding that explanation of the appellate-waiver provision by prosecutor satisfied Rule 11)
- United States v. James Kohn, 529 F. App'x 758 (6th Cir. 2013).unpublishedUnited States v. Wilson, 438 F.3d 672, 674 (6th Cir.2006).
- United States v. Clarence Cohen, 515 F. App'x 405 (6th Cir. 2013).unpublishedSee, e.g., Robinson, 455 F.3d at 610 ; United States v. Sharp, 442 F.3d 946, 950-52 (6th Cir.2006); United States v. Wilson, 438 F.3d 672, 674 (6th Cir.2006).
- United States v. Raymond Canty, 421 F. App'x 541 (6th Cir. 2011).unpublishedAs we noted in Coker , this court has “repeatedly enforced plea agreements waiving specific appellate rights under similar circumstances.” Coker, 514 F.3d at 573-74 (dismissing as waived the defendant’s objection to the manner in which her…
- United States v. Issa Zumot, 337 F. App'x 520 (6th Cir. 2009).unpublished We have established that “any right, even a constitutional right, may be surrendered in a plea agreement if that waiver was made knowingly and voluntarily.” United States v. Wilson, 438 F.3d 672, 673 (6th Cir. 2006).
- United States v. Shearer, 301 F. App'x 450 (6th Cir. 2008).unpublishedRule 11(b) is not violated where the prosecutor, rather than the court, “fully ex-plaints]” the plea “to defendant in open court.” United States v. Wilson, 438 F.3d 672, 674 (6th Cir.2006); see also McGilvery, 403 F.3d at 362 .
Show 13 more citing cases
- United States v. Gibney, 519 F.3d 301 (6th Cir. 2008).publishedP. 11(b)(1)(N); United States v. Wilson, 438 F.3d 672, 674 (6th Cir .2006).
- United States v. Villanueva, 249 F. App'x 413 (6th Cir. 2007).unpublishedUnited States v. Robinson, 455 F.3d 602, 610 (6th Cir.2006), cert, denied, — U.S. -, 127 S.Ct. 1338 , 167 L.Ed.2d 134 (2007); United States v. Wilson, 438 F.3d 672, 674 (6th Cir.2006).
- United States v. Douglas, 242 F. App'x 324 (6th Cir. 2007).unpublishedId. (citing United *329 States v. Wilson, 438 F.3d 672, 674 (6th Cir.2006)).
- Mercado v. United States, 473 F. Supp. 2d 256 (D. Mass. 2007).published(waiver of appeal rights enforceable despite court’s failure to specifically discuss waiver provision with defendant because government summarized plea agreement, including waiver provision, at plea colloquy)
- United States v. Ray Reci Robinson, 455 F.3d 602 (6th Cir. 2006).published (explanation of the appellate waiver provision by prosecutor in summary satisfied Rule 11)
- United States v. Steven Saris, No. 24-3865 (6th Cir. Feb. 19, 2026).unpublishedSee United States v. Wilson, 438 F.3d 672, 674 (6th Cir. 2006).
- United States v. Harvey Harris, No. 19-2253 (6th Cir. Sept. 17, 2020).unpublishedSee United States v. Wilson, 438 F.3d 672, 674 (6th Cir. 2006).
- United States v. Christopher Amos, 604 F. App'x 418 (6th Cir. 2015).unpublishedSee United States v. Wilson, 438 F.3d 672, 674 (6th Cir.2006).
- United States v. Joel Laird, 426 F. App'x 417 (6th Cir. 2011).unpublishedSee United States v. Wilson, 438 F.3d 672, 674 (6th Cir.2006).
- United States v. Keesee, 275 F. App'x 488 (6th Cir. 2008).unpublished (district court’s failure to specifically mention appellate waiver does not rise to plain error when there are other indicia of voluntariness)
- United States v. Jamilie Ledesma, No. 22-2111 (6th Cir. Dec. 1, 2023).unpublished(applying Murdock’s other functional substitute)
- United States v. Demarcus Jones, 489 F. App'x 57 (6th Cir. 2012).unpublishedSee also United States v. Wilson, 438 F.3d 672, 674-75 (6th Cir.2006).
- United States v. Rodney Davis, 422 F. App'x 445 (6th Cir. 2011).unpublished(�We hold that, because the terms of the plea agreement were fully explained to defendant in open court, Rule ll(b)(l)(N) was not violated.)
At page 673 Reviewing plea agreement waivers of constitutional rights14 citing cases“it is well-established that any right, even a constitutional right, may be surrendered in a plea agreement if that waiver was made knowingly and voluntarily.”
- United States v. David Tice, Jr., 366 F. App'x 569 (6th Cir. 2010).unpublished (It is well-established that any right, even a constitutional right, may be surrendered in a plea agreement if that waiver was made knowingly and voluntarily.)
- Fitts v. United States, No. 1:22-cv-01021 (W.D. Tenn. Mar. 22, 2024).(D.E. 14 at PageID 66.) Under the terms of this agreement, Fitts “knowingly and voluntarily waive[d] his right to challenge his sentence under § 2255, except with regard to claims relating to prosecutorial misconduct or ineffective assista…
- United States v. Holden Gallagher, No. 22-3277 (6th Cir. Dec. 15, 2022).unpublishedWaiver Criminal defendants may surrender “any right, even a constitutional right, . . . in a plea agreement if that waiver was made knowingly and voluntarily.” United States v. Wilson, 438 F.3d 672, 673 (6th Cir. 2006) (citing United State…
- United States v. Wall, 230 F. Supp. 3d 771 (E.D. Mich. 2017).publishedSee United States v. Booker, 543 U.S. 220 , 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005). 2 In that context, the Sixth Circuit has recog nized that a waiver in a plea agreement “may waive constitutional or statutory rights .. .that courts may re…
- United States v. Todd Bryant, 663 F. App'x 420 (6th Cir. 2016).unpublished Constitutional rights may be surrendered in a plea agreement “if that waiver was made knowingly and voluntarily.” United States v. Wilson, 438 F.3d 672, 673 (6th Cir. 2006).
- United States v. Toi Melvin, 557 F. App'x 390 (6th Cir. 2013).unpublished United States v. Wilson, 438 F.3d 672, 673 (6th Cir.2006).
- United States v. Franklin McGee, 516 F. App'x 515 (6th Cir. 2013).unpublishedAlthough McGee believes that de novo review restores his right to appeal, he is mistaken. “[A]ny right, even a constitutional right, may be surrendered in a plea agreement if that waiver was made knowingly and voluntarily.” United States v…
- United States v. Joshua Conley-Logan, 510 F. App'x 411 (6th Cir. 2013).unpublishedUnited States v. Wilson, 438 F.3d 672, 673-74 (6th Cir.2006).
- United States v. Deltonio Dorsey, 455 F. App'x 680 (6th Cir. 2012).unpublishedPlea agreements may also “waive constitutional or statutory rights then in existence, as well as those that courts may recognize in the future.” United States v. Wilson, 438 F.3d 672, 673 (6th Cir.2006) (citing United States v. Bradley, 40…
- United States v. Dewaine McIntyre, 445 F. App'x 830 (6th Cir. 2011).unpublished(holding plea to be knowing and voluntary when the district court reviewed the charges with defendant, verified defendant’s understanding of the plea agreement and the voluntariness of the plea, and the prosecutor explai…)
Show 4 more citing cases
- United States v. Issa Zumot, 337 F. App'x 520 (6th Cir. 2009).unpublished We have established that “any right, even a constitutional right, may be surrendered in a plea agreement if that waiver was made knowingly and voluntarily.” United States v. Wilson, 438 F.3d 672, 673 (6th Cir. 2006).
- United States v. Broom, 207 F. App'x 565 (6th Cir. 2006).unpublished Broom’s appellate waiver provision was made “knowingly and voluntarily.” “It is well-established that any right, even a constitutional right, may be surrendered in a plea agreement if that waiver was made knowingly and voluntarily.” United…
- United States v. Jonathone Johnson, 530 F. App'x 406 (6th Cir. 2013).unpublished(By signing the plea agreement, defendant and his counsel both acknowledged not only that they had discussed the agreement, but also that defendant understood its terms.)
- United States v. Bonnie Helt, 529 F. App'x 540 (6th Cir. 2013).unpublishedSee United States v. Wilson, 438 F.3d 672, 673-74 (6th Cir.2006).
At page 675 “even if we were to assume that the district court's failure to specifically discuss the appellate waiver with defendant in open court constituted a technical violation ... the failure constitutes harmless error.”1 citing case
- United States v. Lynch, 188 F. App'x 416 (6th Cir. 2006).unpublishedIndeed, the district court’s Booker error would have been harmless even if the district court had stated only that it would have imposed the same sentence if the Guidelines were not mandatory. “[W]hen a district court imposes alternative,…
v.
Jeremy Dale WILSON, Defendant-Appellant
OPINION
GRIFFIN, Circuit Judge.The government moves to dismiss defendant’s appeal on the ground that defendant[*673] knowingly and voluntarily waived his right to appeal his guilty plea conviction and sentence. We hereby grant the motion and dismiss this appeal. In doing so, we hold that, although some of the terms of the plea agreement were explained to defendant by the United States Attorney, rather than the judge, there was no violation of Federal Rule of Criminal Procedure ll(b)(l)(N). Alternatively, we hold that, even assuming a technical variation of Rule ll(b)(l)(N) occurred, the error did not affect defendant’s substantial rights and therefore was harmless error. See fed. R. Crim. P. 11(h).
I.
Defendant Jeremy Wilson was indicted on April 19, 2004. He was charged in count one with being a felon in possession of a firearm, and in count two with possessing ammunition, both counts in violation of 18 U.S.C. § 922(g)(1). Defendant pleaded guilty to count one under the terms of a plea agreement. During defendant’s rearraignment proceeding, the district court reviewed the charges against defendant, established defendant’s competency, and inquired about defendant’s satisfaction with his attorney. The district court also verified defendant’s understanding of the terms of the plea agreement and the voluntariness of defendant’s plea.
During the course of the proceeding, the district court also asked the prosecutor to explain the essential terms of the plea agreement. The prosecutor consequently explained, among other things, that defendant was waiving the right to appeal the guilty plea, conviction, and sentence. The prosecutor also noted that defendant agreed to be sentenced under the Guidelines and not to raise an issue pursuant to Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2581[incorrect citation], 159 L.Ed.2d 403 (2004). Neither defendant nor defendant’s counsel disagreed with the explanation of the prosecutor.
Under the terms of the plea agreement, defendant admitted that he had possessed a firearm and that he had been convicted of a felony crime at the time he possessed the firearm. The plea agreement expressly waived “the right to appeal and the right to attack collaterally the guilty plea, conviction, and sentence, including any order of restitution.” By signing the plea agreement, defendant and his counsel both acknowledged not only that they had discussed the agreement, but also that defendant understood its terms.
The district court accepted defendant’s plea agreement and guilty plea at the rear-raignment hearing. Defendant’s subsequent presentence report also noted that he had waived his statutory right to appeal his guilty plea, conviction, and sentence. Defendant did not object to the presen-tence report.
On December 9, 2004, in breach of his plea agreement, defendant filed a notice of appeal. On appeal, defendant challenges (1) the validity of his appeal waiver, and (2) the validity of his sentence under Blakely and United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). The government contends that defendant’s plea waiver was valid and now moves for dismissal of the appeal. We agree.
II.
It is well-established that any right, even a constitutional right, may be surrendered in a plea agreement if that waiver was made knowingly and voluntarily. See United States v. Ashe, 47 F.3d 770, 775-76 (6th Cir.1995). In a post -Booker world, we have also held that plea agreements may waive constitutional or statutory rights then in existence, as well as those that courts may recognize in the future. See [*674] United States v. Bradley, 400 F.3d 459, 463 (6th Cir.2005). In Bradley, we held that a valid waiver of the right to appeal contained in a plea agreement also waived a defendant’s right to challenge the mandatory application of the Guidelines post- Booker. 1 Id. Thus, if we hold that the appellate waiver contained in defendant’s plea agreement is valid, defendant’s second challenge is without merit.
A. Defendant’s Rule 11(b) (1)(N) Challenge.
Rule ll(b)(l)(N) provides that when a court considers and accepts a defendant’s guilty plea, the court “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.ll(b)(l)(N). [2] Defendant argues that because the district court never specifically read the portion of the plea agreement concerning the appellate waiver to him at the hearing, the waiver is now unenforceable. We disagree.
In opposing the government’s motion to dismiss this appeal, defendant relies nearly exclusively on United States v. Murdock, 398 F.3d 491 (6th Cir.2005), for the proposition that the failure of the sentencing judge to inform the defendant of the appellate waiver as required by Rule 11(b) renders the waiver invalid. However, Murdock is readily distinguishable from the present case. In Murdock, the waiver of the right to appeal was never discussed with the defendant in open court. Id. Here, the judge, while directly addressing defendant, instructed the United States Attorney to explain to defendant the details of the plea agreement. Indeed, Murdock itself indicated a “prosecutor in summarizing the key elements of the agreement might adequately address the waiver.” Id. at 498. Defendant was expressly informed that as part of the plea agreement, “the defendant agrees not to appeal his guilty plea conviction and sentence.” Thereafter, the court inquired whether defendant still desired to plead guilty after being advised of all of his rights and defendant stated “Yes, sir.”
Based on this record, we conclude that defendant’s plea agreement was made knowingly and voluntarily. We hold that, because the terms of the plea agreement were fully explained to defendant in open court, Rule ll(b)(l)(N) was not violated.
B. Harmless Error
Alternatively, even if we were to assume that the district court’s failure to[*675] specifically discuss the appellate waiver with defendant in open court constituted a technical violation of Rule ll(b)(l)(N), we hold that the failure constitutes harmless error. Rule 11(h) states that technical variations of Rule 11 shall be harmless error unless such errors “affect substantial rights.” [3] fed. R. Crim. P. 11(h). No such error occurred here. Wilson’s lone allegation is that the waiver of his right to appeal now prevents him from pressing a Booker objection. But he has not explained how remanding the case to the district court could conceivably help him at this point. The trial judge issued alternative sentences, one under the then-mandatory Guidelines, one under the possibility that the Guidelines would be declared unconstitutional. The two sentences were identical (fifty-one months). See United States v. Christopher, 415 F.3d 590, 594 (6th Cir.2005) (“The district court’s alternative sentence makes clear that either in the absence of the Guidelines or in an advisory Guidelines system, the district court would have imposed on Christopher the same sentence as the mandatory Guidelines required.”). As in Christopher, “[a]ny sentencing error in this case,” even if he had not waived his right to appeal, would be “harmless.” Id. at 593.
III.
The motion is granted, and the appeal is dismissed.
. The circuits are in near uniformity on this point. See United States v. Sahlin, 399 F.3d 27 (1st Cir.2005); United States v. Morgan, 406 F.3d 135 (2d Cir.2005); United States v. Lockett, 406 F.3d 207 (3rd Cir.2005); United States v. Blick, 408 F.3d 162 (4th Cir.2005); United States v. Burns, 433 F.3d 442 (5th Cir.2005); United States v. Bradley, 400 F.3d 459 (6th Cir.2005); United States v. Bownes, 405 F.3d 634 (7th Cir.2005); United States v. Kitlgo, 397 F.3d 628 (8th Cir.2005); United States v. Cardenas, 405 F.3d 1046 (9th Cir.2005); United States v. Green, 405 F.3d 1180 (10th Cir.2005); United States v. Rubbo, 396 F.3d 1330 (11th Cir.2005). As of yet, the District of Columbia Circuit has not addressed die matter.
. Rule 11 provides:
... Before the court accepts a plea of guilty or nolo contendere, the defendant may be placed under oath, and 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)(l)(N).
. Rule 11(h) provides that "[a] variance from the requirements of this rule is harmless error if it does not affect substantial rights.” fed. R. Crim. P. 11(h)