                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 01-1272
                                   ___________

United States of America,             *
                                      *
            Appellee,                 *
                                      *
      v.                              * Appeal from the United States
                                      * District Court for the Eastern
John Robert Andis, also known as      * District of Missouri.
Robert Andis,                         *
                                      *
            Appellant.                *
                                 ___________

                             Submitted: September 11, 2001
                                Filed: January 17, 2002
                                 ___________

Before MORRIS SHEPPARD ARNOLD and BRIGHT, Circuit Judges, and KYLE,1
      District Judge.
                         ___________

BRIGHT, Circuit Judge.

       John R. Andis pleaded guilty to transporting a minor in interstate commerce for
illegal sexual activity in violation of 18 U.S.C. § 2423(a), after agreeing with the
government "to waive all rights to appeal whatever sentence is imposed . . . reserving
only the right to appeal from an upward or downward departure." At the time that he
pleaded guilty and at his sentencing hearing, Mr. Andis acknowledged the existence


      1
      The Honorable Richard H. Kyle, United States District Judge for the District
of Minnesota, sitting by designation.
of this promise in his plea agreement. He now appeals from the conditions of
supervised release that the district court2 imposed on him at sentencing. Mr. Andis
argues that the conditions of release were illegal because they are generic conditions
imposed without regard to the specific characteristics of Mr. Andis or his offense.
The United States contends that Mr. Andis waived his right to appeal the sentence
imposed by the district court and the conditions were not illegally imposed. A
majority of the panel determines that Mr. Andis could not waive his right to appeal
an alleged illegal sentence.3 A different majority remands the merits of Mr. Andis'
claim for further consideration consistent with this opinion.4

                                  I. DISCUSSION

      The United States would have this court adopt the new principle that if done
so knowingly and voluntarily, a defendant can waive the right to appeal an illegal
sentence imposed by the district court. A holding of this nature would contradict the
reasoning of prior Eighth Circuit opinions and would create an unjust rule of law
based on little, if any, precedent.

       In United States v. Michelsen, 141 F.3d 867, 872 (8th Cir. 1998), we reasoned
that the right to appeal an illegal sentence is "implicitly preserved" despite any

      2
       The Honorable Stephen N. Limbaugh, United States District Judge for the
Eastern District of Missouri.
      3
       Judge Kyle, concurring in part and dissenting in part, agrees that Mr. Andis
cannot waive his right to appeal an illegal sentence. Judge Kyle, however, would find
that the conditions of release bear a reasonable relationship to the offense and
characteristics of the defendant.
      4
       Judge Morris Arnold, concurring in part and dissenting in part, agrees that the
conditions of release imposed on Mr. Andis should be remanded for further
consideration, but would hold that the panel does not have jurisdiction to reach that
issue because Mr. Andis' waiver bars his appeal.

                                         -2-
waiver. The government urges this court to limit Michelsen's applicability to
situations where a defendant is collaterally attacking his sentence under 28 U.S.C. §
2255. This contention has already been rejected by a recent Eighth Circuit case,
DeRoo v. United States, 223 F.3d 919, 923 (8th Cir. 2000), in which we concluded:
"As a general rule, we see no reason to distinguish the enforceability of a waiver of
direct-appeal rights from a waiver of collateral-attack rights in the plea agreement
context." (citing Latorre v. United States, 193 F.3d 1035, 1037 n.1 (8th Cir. 1999)).

        After explaining that there was no need to distinguish between waiver of direct
or collateral appellate rights, the court in DeRoo cited Michelsen for the proposition
upon which Mr. Andis now relies. In DeRoo, the court explained that waivers of
appeal in plea agreements "are not absolute. For example, defendants cannot waive
their right to appeal an illegal sentence or a sentence imposed in violation of the terms
of an agreement." 223 F.3d at 923 (citing Michelsen, 141 F.3d at 872).

       We have repeatedly held that a defendant in a criminal case may waive his right
to appeal if he does so knowingly and voluntarily. See, e.g., United States v. Estrada-
Bahena, 201 F.3d 1070, 1071 (8th Cir. 2000) (per curiam). Indeed, there are
important policy concerns for strictly enforcing a defendant's waiver of appellate
rights. The defendant gives up his statutory right to appeal in exchange for
concessions from the government, such as recommending a lenient sentence. See
Michelson, 141 F.3d at 873. Allowing a defendant to appeal his sentence forces the
government to expend time and resources, which undermine the "bargained-for
finality." Id.

       Finality is certainly an incentive, but allowing a defendant to appeal an illegal
sentence does not obviate the government's entire benefit. The government enters
into plea bargaining with a defendant for a variety of reasons, not simply to avoid
appeals. For example, plea bargaining provides the government with the benefit of



                                          -3-
not having to prepare the case for trial, put on witnesses and evidence, prove each
element of the offense to a fact-finder, and risk acquittal.

       The sentencing judge is a third party, not bound by the contract reached
between the defendant and the government through plea bargaining. The defendant
and the government bargain with each other under the assumption that the judge will
sentence the defendant within the prescribed parameters of the law. These parameters
establish the framework for plea negotiations. Therefore, when a defendant reaches
an agreement with the government to plead guilty and waive his right to appeal, he
"does not subject himself to being sentenced entirely at the whim of the district
court." See United States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992) (providing
examples of sentences based on race or in excess of the maximum statutory penalty
as examples of illegal sentences for which appellate review is not waived). The
government and the defendant cannot bargain away the defendant's right to object to
the future unlawful actions of a third party.

       Turning to the merits, we determine that the district court exceeded its
discretion by imposing conditions of release on Mr. Andis that may not bear a
reasonable relationship to either the nature and circumstances of the offense or the
history and characteristics of the defendant as required by 18 U.S.C. § 3583(c) and
section 5D1.3(b) of the United States Sentencing Guidelines Manual.5 See United

      5
        Mr. Andis objects to five special conditions of release: (1) prohibition from
contact with children under the age of 18 without prior written permission of the
probation officer and immediate reporting to the probation officer of any
unauthorized contact with children under the age of 18; (2) prohibition on engaging
in any occupation, business or profession where he has access to children under the
age of 18 without prior written approval of the probation officer; (3) prohibition on
loitering within 100 feet of schools, parks, playgrounds, arcades or other places
frequented by children; (4) submission to search of his person, residence, office or
vehicle by a probation officer based upon reasonable suspicion of contraband or
evidence of a violation of conditions of release; and (5) prohibition on the purchase

                                        -4-
States v. Prendergast, 979 F.2d 1289, 1292-93 (8th Cir. 1992) (explaining that the
terms of supervised release must not involve a greater deprivation of liberty than is
reasonably necessary to fulfill the goals of Congress and the Sentencing
Commission). As this circuit noted in Prendergast, the conditions that restrict a
probationer's freedom must be "especially fine tuned." Id. at 1293 (quoting United
States v. Tolla, 781 F.2d 29, 34 (2d Cir. 1986)).

       At sentencing the district court was exceedingly candid in explaining the
process by which the conditions were imposed. "As I understand it, this is – these are
standard conditions that the probation officers recommend to the Court in this
building for this type of offense. And at this stage, I know of no judge who has
refused to impose these restrictions." Based on this statement, it is clear that the court
accepted certain standard conditions, some of which appear to have little or no
relationship to the defendant. The district court did not carefully consider whether
the conditions of release were "fine tuned" to the crime or the defendant's individual
situation.6

      A district court can use nonjudicial officers, such as probation officers, to
support judicial functions, "as long as a judicial officer retains and exercises ultimate
responsibility." See United States v. Kent, 209 F.3d 1073, 1078 (8th Cir. 2000)
(quoting United States v. Johnson, 48 F.3d 806, 808-09 (4th Cir. 1995)) (emphasis
in original). The practice of district courts should not be to adopt the
recommendations of the probation report without making specific and reasoned

or maintenance of a post office box or other type of private mailbox without written
approval of the probation officer.
      6
       The district court did respond to the defendant's objection to the conditions of
release by commenting, "I think all of these restrictions are appropriate for the
conduct this defendant was engaging in." However, the court offered no elaboration
and did not specify how any of the special conditions applied to Mr. Andis' crime or
individual characteristics.

                                           -5-
determinations regarding the applicability of the special conditions of release. By
their very nature "standard conditions of release," as recommended by the probation
department and adopted by a district court, may not be sufficiently tailored to a given
case.

                                 II. CONCLUSION

       Because Mr. Andis' liberty interests may have been significantly curtailed
without due consideration by the district court, we remand this case to the district
court for further proceedings in determining which, if any, of the special conditions
of release in question should be applied to Mr. Andis.

MORRIS SHEPPARD ARNOLD, Circuit Judge, dissenting in part and concurring
in the judgment.

       John R. Andis pleaded guilty to transporting a minor in interstate commerce for
illegal sexual activity in violation of 18 U.S.C. § 2423(a), after agreeing with the
government "to waive all rights to appeal whatever sentence is imposed ... reserving
only the right to appeal from an upward or downward departure." At the time that he
pleaded guilty and at his sentencing hearing, Mr. Andis acknowledged the existence
of this promise in his plea agreement. He now appeals from the conditions of
supervised release that the district court imposed on him at sentencing, asserting that
they were illegal because they bear no reasonable relationship to his offense. Despite
Mr. Andis's clear and unambiguous promise not to appeal his sentence, the court now
entertains his appeal. I respectfully dissent.

      We have held repeatedly that a defendant in a criminal case may waive his right
to appeal if he does so knowingly and voluntarily. See, e.g., United States v. Estrada-
Bahena, 201 F.3d 1070, 1071 (8th Cir. 2000) (per curiam); United States v. Greger,
98 F.3d 1080, 1081-82 (8th Cir. 1996). There is no evidence that Mr. Andis's consent

                                         -6-
to the plea agreement in this case was not knowing or voluntary, and, indeed, he does
not contend that it was not. He maintains, instead, that a defendant cannot waive the
right to appeal an illegal sentence, and cites two cases of ours in support of this
contention.

        In United States v. Michelsen, 141 F.3d 867, 869 (8th Cir. 1998), cert. denied,
525 U.S. 942 (1998), we had under consideration a plea agreement that "waive[d] any
right to raise and/or appeal ... concerning any and all ... defenses ... which defendant
... could assert ... to the ... imposition of sentence." In the course of our discussion,
we noted that such a waiver would not "prevent a challenge under 28 U.S.C. § 2255
to an 'illegal sentence,' such as a sentence imposed in excess of the maximum penalty
provided by statute or based upon a constitutionally impermissible factor such as
race." Id. at 872 n.3. Presumably, this statement of principle was simply an
acknowledgment that a promise not to appeal does not, as a matter of law, imply a
promise not to engage in a collateral attack. We are not concerned here with a
collateral attack, so the statement has no application, though I note that the plea
agreement in the instant case also contains a waiver of "all rights to contest the ...
sentence ... except for grounds of prosecutorial misconduct or ineffective assistance
of counsel ... in any post-conviction proceeding [under] 28 U.S.C., Section 2255."

       It is true that we also stated in Michelsen, 141 F.3d at 872, that the defendant
in that case had "implicitly preserved his right to appeal on grounds that his sentence
was illegal." In the first place, however, the statement is dictum because there was
no claim in Michelsen that the sentence was illegal. In the second place, the
agreement in Michelsen differed in an important way from the one under
consideration here. The agreement here, as we have already noted, contains some
explicit exceptions, and I think that the specific reservation of rights with respect to
those negates the existence of any supposed general implicit exception for an illegal
sentence, especially when the exceptions themselves deal with sentences contrary to
law.

                                          -7-
       The other case to which Mr. Andis calls our attention is DeRoo v. United
States, 223 F.3d 919, 923 (8th Cir. 2000), which relies on Michelsen for the
proposition that "defendants cannot waive their right to appeal an illegal sentence."
But this is not what Michelsen said: As I have already explained, Michelsen said that
the defendant in that case did not as a matter of fact waive his right to appeal an
illegal sentence, not that he could not as a matter of law. The statement in DeRoo is,
in any case, dictum, because the defendant's argument there was that his waiver was
not knowing and voluntary, see 223 F.3d at 923, not that his sentence was illegal.

       In short, I see no obstacle to the enforcement of Mr. Andis's waiver of his right
to appeal. I agree with the Fifth Circuit that "[w]hen a defendant waives her right to
appeal, she gives up the very valuable right to correct a district court's unknown and
unannounced sentence. After waiving her right to appeal, the district court could err
in its application of the Sentencing Guidelines or otherwise impose an illegal
sentence." United States v. Baty, 980 F.2d 977, 979 (5th Cir. 1993), cert. denied, 508
U.S. 956 (1993). As we have previously observed, plea agreements involve the
exchange of sentencing concessions by the government for "an assurance that it
would not be required to expend valuable time and resources" on appeal, Michelsen,
141 F.3d at 873. By allowing this appeal to proceed, the court "eliminate[s] one of
the primary incentives the government has for negotiating plea agreements," id.

      I nevertheless agree with Judge Bright, and for the reasons that he states, that
the conditions imposed on Mr. Andis may well have been unreasonable and thus
unauthorized by law. I therefore concur in the judgment of remand, even though I
believe that this appeal is quite plainly barred by Mr. Andis's promise, because
otherwise the court could not issue a mandate.




                                          -8-
KYLE, District Judge, dissenting.

      Although I agree with the decision insofar as it concludes that Andis did not
waive his right to appeal what he now claims to be an illegal sentence, I respectfully
dissent from the majority's determination that certain terms of supervised release may
have been imposed by the District Court "without due consideration" and remanding
the case for further proceedings.

       Defendant Andis first met the juvenile victim on the Internet where, knowing
that she was only 14 years old, he engaged in sexually explicit conversations with her.
Andis then drove from Las Vegas to Missouri, where he picked up the juvenile at her
home and returned her to Las Vegas, where they engaged in sexual intercourse on
multiple occasions over the course of several days. He pleaded guilty to transporting
a minor in interstate commerce for illegal sexual activity in violation of 18 U.S.C. §
2423(a).

       At his sentencing hearing, counsel for Andis objected to the imposition of the
five conditions of supervised release which are the subject of this appeal on the
grounds that "those conditions are not reasonably related to the facts and
circumstances of this case, or the history and characteristics of Mr. Andis, nor are
they fine-tuned to the facts of this case. I think they are a great deprivation of his
liberty and his ability to work." (Tr. at 23.)

      The District Court responded to counsel's objections as follows:

      "I think they [the conditions] are reasonably related to this particular
      offense.
                                        ****
      I don't think it's going to unduly impinge upon defendant's rights, other
      than those that he has violated, which have brought him into this
      circumstance.


                                         -9-
                                         ****
      I think all of these restrictions are appropriate for the conduct that this
      defendant was engaging in." (Tr. at 24.)

       In light of this record, the majority concludes that "the district court did not
carefully consider whether the conditions of release were 'fine tuned' to the crime or
the defendant's individual situation." I do not read the sentencing transcript that way.
The trial court had the recommendations of the probation office before it prior to
sentencing. It did not adopt all of the recommended conditions as a mere "rubber
stamp"; the sentencing judge rejected a recommended condition involving clothing.
Upon specific objections by defense counsel, the sentencing judge stated that the
imposed conditions were appropriate for defendant's conduct and reasonably related
to the defendant's offense.

       In my view, each of the objected to conditions is clearly related to the sexual
misconduct of the Defendant; each is directed at permitting the probation office to
effectively monitor Defendant's access to children under the age of 18. With the
exception of the search of his person, residence, office or vehicle upon reasonable
suspicion of contraband or evidence of a violation of a condition of release, the
Defendant's activities are generally restricted only if carried on without the
permission of the probation officer. The District Court considered and applied the
principles enumerated in Prendergast and imposed conditions appropriate for the
Defendant.

        To remand the matter for reconsideration of the same record which was before
the District Court (and is now before this Court), and to instruct the District Court to
apply principles which were clearly known to and considered by the District Court
in the first instance, avoids this Court's responsibility for the sentence to be imposed.
If the majority is of the view that the imposed conditions are not appropriate for this




                                          -10-
type of sexual misconduct,7 it should say so and direct the District Court to delete
those conditions. The record is before us and we should either affirm the District
Court or reverse with directions to eliminate the conditions found objectionable by
the majority here.8 I would affirm.

      A true copy.

             Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




      7
        Judge Bright states that the imposed conditions "may not bear a reasonable
relationship to either the nature and circumstances of the offense or the history and
characteristics of the defendant . . . ." Judge Arnold agrees that "the conditions
imposed on Mr. Andis may well have been unreasonable and thus unauthorized by
law."
      8
        In State v. Prendergast, 979 F.2d 1289 (8th Cir. 1992), after determining that
certain terms of supervised release did not "reasonably relate to the goals of
rehabilitation and protection," this Court remanded the case to the district court with
directions to "amend the conditions of supervised release by eliminating" certain
conditions.

                                         -11-
