United States Court of Appeals, District of Columbia Circuit
January 18, 2018
from the United States District Court for the District of
Columbia (No. 1:13-cr-00081-1)
Kramer, Federal Public Defender, argued the cause and filed
the briefs for appellant.
M. Jones, Assistant U.S. Attorney, argued the cause for
appellee. With him on the brief were Jessie K. Liu, U.S.
Attorney, and Elizabeth Trosman, Nicholas P. Coleman, and
Michael K. Atkinson, Assistant U.S. Attorneys.
Before: Henderson, Rogers, and Kavanaugh, Circuit Judges.
Kavanaugh, Circuit Judge
defendant enters into a plea agreement with the Government,
the defendant may agree to waive the right to appeal the
sentence. At the defendant's subsequent plea hearing, the
district court must ensure that the defendant understands
that appeal waiver. In particular, Rule 11(b)(1)(N) of the
Federal Rules of Criminal Procedure requires the district
court, at the plea hearing, to "determine that the
defendant understands" the "terms of any
plea-agreement provision waiving the right to appeal"
the defendant's sentence.
that a defendant agrees to plead guilty and signs a written
plea agreement that waives the right to appeal the sentence.
But then the district court, in violation of Rule 11, fails
to discuss the appeal waiver at the plea hearing. On appeal,
do we still enforce the appeal waiver?
Court has not yet decided how a district court's failure
to comply with Rule 11(b)(1)(N) affects the validity of an
appeal waiver. The text of Rule 11(h) guides our analysis.
Rule 11(h) provides that a Rule 11 error must be deemed
harmless if the error did not affect the defendant's
"substantial rights." 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. 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.
case, defendant John Han Lee entered into a written plea
agreement with the Government. In the plea agreement, Lee
waived his right to appeal a sentence that was within or
below the applicable Guidelines range. At Lee's
subsequent plea hearing, the District Court did not discuss
the appeal waiver. Lee pled guilty and was later sentenced to
a within-Guidelines sentence of 18 months in prison, to be
followed by three years of supervised release. He has
appealed his sentence.
examining the entire record, we conclude that Lee knowingly,
intelligently, and voluntarily waived the right to appeal his
within-Guidelines sentence. We therefore enforce the appeal
waiver and dismiss Lee's appeal.
2013, John Han Lee entered into a written plea agreement with
the Government. Under the terms of the plea agreement, Lee
agreed to plead guilty to one count of bribery of a public
official and one count of conspiracy to commit bank fraud.
The plea agreement included the following appeal waiver:
Your client is also aware that the parties' calculation
of the sentencing range under the Sentencing Guidelines is
not a promise of the sentence to be imposed on him and is not
binding on the Court. Knowing that, your client waives the
right to appeal his sentence or the manner in which it was
determined pursuant to 18 U.S.C. § 3742, except to the
extent that (a) the Court sentences your client to a period
of imprisonment longer than the statutory maximum, (b) the
Court departs upward from the applicable Sentencing
Guidelines range pursuant to the provisions of U.S.S.G.
§§ 5K2, or (c) the Court imposes a period of
incarceration above the guidelines range for a total offense
level of 25 based on a Criminal History Category I. . . . In
agreeing to this waiver, your client is aware that his
sentence has not yet been determined by the Court. Realizing
the uncertainty in estimating what sentence the Court will
ultimately impose, your client knowingly and willingly waives
his right to appeal the sentence, to the extent noted above,
in exchange for the concessions made by this Office in this
signed the plea agreement. The agreement stated that Lee had
read and understood the agreement, that he had discussed it
with his counsel, and that he was entering into the agreement
"without reservation, " "voluntarily, "
and of his "own free will." The agreement also
stated that Lee was "satisfied" with his
counsel's services. Lee's counsel - who was an
experienced criminal defense attorney - also signed the plea
agreement, affirming that he had "fully" discussed
the agreement's provisions with Lee. App. 35.
then pled guilty before a magistrate judge. At the plea
hearing, Lee stated that he had attended college for a few
years. The magistrate judge asked Lee to confirm that he had
"completely and thoroughly discussed" the plea with
his counsel. Lee said that he had. Lee also said that he was
satisfied with his counsel's services. Lee confirmed that
he had read the written plea agreement "very
carefully" and that his signature indicated his
acceptance of the agreement's terms. Finally, the
magistrate judge asked Lee if he had any questions about the
plea agreement. Lee said that he did not. App. 39-42.
magistrate judge did not question Lee about the appeal-waiver
provision and, indeed, never mentioned the appeal-waiver
provision. Lee's counsel did not object to the magistrate
judge's failure to discuss the appeal-waiver provision.
end of the plea hearing, the magistrate judge determined that
Lee was pleading guilty knowingly and voluntarily. The
magistrate judge therefore recommended that the District
Court accept Lee's plea. The District Court in turn
accepted the plea.
District Court later sentenced Lee to a within-Guidelines
sentence of 18 months of imprisonment and three years of
appealed his sentence, asking us to vacate most of the
conditions of supervised release. Because we conclude that
Lee waived his right ...