The Dreaded Appellate Waiver Strikes Again: Court Holds that a Challenge to an Indictment is Barred By Appellate Waiver

In a surprise to no one, United States Attorneys offices would prefer that defendants waive all of their appellate rights in their plea agreements. That is why they frequently ask for either broad or limited appellate waivers in them. Generally, appellate courts will enforce such provisions according to their terms, with certain exceptions. Those exceptions include where the waiver was not knowing or voluntary or where the appellate challenges the district court's subject matter jurisdiction. The Sixth Circuit recently addressed those exceptions in its published opinion in United States v. Ellis.  

Don Ellis entered into a binding plea agreement to several offenses, including two counts to carrying a firearms during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c). In exchange for the Government's agreement to propose a below-Guidelines sentence of 201 months' imprisonment, Ellis agreed to plead guilty to all six counts of the indictment and to waive his right to appeal his conviction and sentence except in limited circumstances.

During his change-of-plea hearing, the district court went through its plea colloquy with Ellis and explained the rights he would waive by pleading guilty, including his right to appeal his conviction and sentence. It chose not to accept the plea agreement at that time, however, opting to wait until after it reviewed his presentence investigation report. 

Over four months later, Ellis moved to withdraw his plea, arguing he had not understood that the appellate waiver in his plea agreement would bar him from pursuing issues regarding his § 924(c) charges. The district court denied his motion, noting he waited four months after his change-of-plea hearing.

During his sentencing, Ellis renewed his motion to withdraw his guilty plea. In addition, he alleged that count four of the Indictment -- charging a violation of 18 U.S.C. § 924(c) predicated on his underlying bank robbery charge -- did not allege a crime because it "mixed and matched" language of two different crimes encompassed in the statute. The district court rejected both arguments, adopted the parties' plea agreement, and sentenced Ellis to 201 months' imprisonment.

On appeal, Ellis argued the district court erred in denying his motion to withdraw his guilty plea and in denying his challenge to the sufficiency of his indictment. Additionally, he argued the district court constructively amended the indictment by relying on his plea agreement to clarify the § 924(c) charge. In response, the Government moved to dismiss his appeal.

The Court granted the Government's motion, holding that the referenced waiver barred Ellis's appeal. It first rejected his challenge that his plea was not knowing and voluntary, holding that the district court sufficiently explained the plea agreement to him during his change-of-plea hearing. Additionally, it rejected his claim that his lawyer did not spend sufficient time explaining the plea agreement to him.

Ellis also argued that the defects in his § 924(c) charges deprived the district court of subject matter jurisdiction, and, thus, the appellate waiver did not bar his appeal of that issue. Citing the United States Supreme Court's decision in United States v. Cotton, the Court held that defects in Ellis's indictment related to the merits of Ellis's case, and that they did not deprive the district court of subject matter jurisdiction. Ellis thus waived this claim on appeal.