                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-16-2008

USA v. Goodson
Precedential or Non-Precedential: Precedential

Docket No. 06-4895




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008

Recommended Citation
"USA v. Goodson" (2008). 2008 Decisions. Paper 282.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/282


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2008 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT

              Case Nos: 06-4895, 06-4896

           UNITED STATES OF AMERICA


                             v.

               DANIEL J. GOODSON, III

                             Appellant




    On Appeal from the United States District Court
         for the Western District of Pennsylvania
       District Court Nos. 05-CR-179, 06-CR-231
   District Judge: The Honorable Donetta W. Ambrose


    Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                      July 1, 2008

 Before: RENDELL, SMITH, and FISHER, Circuit Judges

                (Filed: October 16, 2008)

                            1
                      Karen S. Gerlach
                      Renee Pietropaolo
              Office of Federal Public Defender
                    1001 Liberty Avenue
                     1450 Liberty Center
                    Pittsburgh, PA 15222
                    Counsel for Appellant

                    Robert L. Eberhardt
                       Laura S. Irwin
              Office of United States Attorney
                      700 Grant Street
                         Suite 4000
                   Pittsburgh, PA 15219
                   Counsel for Appellee


                         OPINION


SMITH, Circuit Judge.

       Daniel J. Goodson appeals from the sentence imposed by
the United States District Court for the Western District of
Pennsylvania, challenging a condition of supervised release
requiring Goodson to consent to a search of his place of
business. The government asserts that we are precluded from
reviewing this issue because Goodson, pursuant to a plea
agreement, waived his right to file a direct appeal under 18
U.S.C. § 3742(a). In his reply brief, Goodson acknowledges for

                              2
the first time the existence of an appellate waiver. He contends,
however, that the waiver does not preclude this particular appeal
and that, in any event, the waiver is invalid because it was
unknowing and involuntary.

        We must determine whether Goodson’s failure to address
the applicability of the appellate waiver in his opening brief
effectively foreclosed him from subsequently challenging in his
reply brief the enforceability of the appellate waiver. We hold
that it does not. Nonetheless, we will enforce the appellate
waiver and will affirm the judgment of the District Court.

                               I.

       On June 23, 2005, a grand jury returned an indictment
(District Court No. 05-CR-179), charging Goodson with three
counts of intending to defraud and to use an unauthorized access
device in violation of 18 U.S.C. § 1029(a)(2), and one count of
wire fraud in violation of 18 U.S.C. § 1343. Thereafter, the
government and Goodson entered into a plea agreement.
Goodson agreed, inter alia, to: (1) plead guilty to count four of
the 2005 indictment, charging him with wire fraud in violation
of 18 U.S.C. § 1343; (2) waive his right to be indicted and to
plead guilty to counts one and two of an information (District
Court No. 06-CR-231), charging him with making and uttering
counterfeit checks in violation of 18 U.S.C. § 513; and (3)
“waive[] the right to take a direct appeal from his conviction or
sentence under 28 U.S.C. § 1291 or 18 U.S.C. § 3742,” subject

                               3
to certain exceptions.

          The appellate waiver provision of the plea agreement
states:

          9. Daniel J. Goodson, III waives the right to take
          a direct appeal from his conviction or sentence
          under 28 U.S.C. § 1291 or 18 U.S.C. § 3742,
          subject to the following exceptions:

                 (a) If the United States appeals
                 from the sentence, Daniel J.
                 Goodson, III may take a direct
                 appeal from the sentence.

                 (b) If (1) the sentence exceeds the
                 applicable statutory limits set forth
                 in the United States Code, or (2)
                 the sentence unreasonably exceeds
                 the guideline range determined by
                 the Court under the Sentencing
                 Guidelines, Daniel J. Goodson, III
                 may take a direct appeal from the
                 sentence.

          The foregoing reservations of the right to appeal
          on the basis of specified issues do not include the
          right to raise issues other than those specified.




                                  4
       Daniel J. Goodson, III further waives the right to
       file a motion to vacate sentence, under 28 U.S.C.
       § 2255, attacking his conviction or sentence, and
       the right to file any other collateral proceeding
       attacking his conviction or sentence.

The maximum penalties involved were set forth in the
agreement, including the maximum term of supervised release
of three years. On the last page of the plea agreement was an
acknowledgment by Goodson that he had read the agreement,
discussed it with his counsel, and accepted that it fully set forth
the terms of his agreement with the government. Goodson
signed this acknowledgment, and his counsel witnessed his
signature.

       The following day, during the change of plea hearing, the
District Judge conducted a plea colloquy, during which Goodson
affirmed that he was 31 years of age, had a college degree, and
understood the English language. The Court reviewed the
various rights that Goodson was giving up by pleading guilty.
She also reviewed what the government was required by law to
prove if Goodson went to trial. In explaining the maximum
penalties Goodson faced if convicted, the Court addressed not
only the maximum term of imprisonment, but also the fine, the
term of supervised release, the mandatory special assessment,
and restitution. The Court noted the existence of the plea
agreement and requested that the prosecutor review the
substance of the agreement on the record. In describing the


                                5
waiver, the prosecutor stated:

       There is a waiver provision in the plea agreement
       that deals with him waiving his right to take a
       direct appeal from his conviction. There are
       certain exceptions that are specified in the
       agreement which would permit him to take an
       appeal under those circumstances. He also agrees
       to the waiver of his right to file a 28 U.S.C. §
       2255 motion.

At the conclusion of the prosecutor’s statement, the District
Judge asked Goodson if he had heard the prosecutor’s recitation.
Goodson affirmed that he had. The Court then asked if
Goodson understood what the prosecutor had said. Goodson
again replied in the affirmative. Later during the proceeding,
this exchange took place:

       Court: Do you understand that under certain
       circumstances, this relates to what you have given
       up in the plea agreement, you or the government
       may have the right to appeal any sentence that I
       impose?

       Defendant: Yes, Your Honor.

       Court: But do you understand that you have given
       up substantial appellate rights in the plea
       agreement?


                                 6
       Defendant: Yes, Your Honor.

 Thereafter, Goodson pleaded guilty to the wire fraud count in
the indictment, and the two counts of making and uttering a
counterfeit security. The Court found that Goodson’s pleas
were knowing and voluntary, and accepted them.

       Subsequently, the District Court sentenced Goodson on
both the 2005 and the 2006 criminal actions to concurrent terms
of 27 months of imprisonment, which were to run concurrently,
in part, with sentences previously imposed by the Allegheny
County Court of Common Pleas. In addition, the Court imposed
a three year period of supervised release, including as a
condition of supervised release that Goodson maintain gainful
employment and that Goodson “shall consent to the United
States Probation Office conducting periodic unannounced
examinations of his computer system(s)” and that he “shall
submit to [sic] his person, residence, place of business,
computer, and/or vehicle to a warrantless search conducted and
controlled by the United States Probation Office at a reasonable
time and in a reasonable manner, based upon reasonable
suspicion of contraband or evidence of a violation of a condition
of release.”

       At the conclusion of the sentencing hearing, the District
Court advised that Goodson had the right to appeal his sentence
within ten days. On the heels of this statement, the prosecutor
reminded the Court that Goodson “waived his right to appeal in

                               7
this case” with certain exceptions enumerated therein. In
response, the Court clarified that “whatever is not covered by
the waiver in the plea agreement, you have a right to appeal on.”
Id.

       Goodson filed a timely appeal from the sentences
imposed in both the 2005 and the 2006 criminal actions. The
government did not file a motion to dismiss the appeal through
enforcement of the appellate waiver. Instead, the parties
complied with the briefing schedule issued by this Court.
Goodson asserted in his appellate brief that the condition of
supervised release requiring that he consent to a warrantless
search of his “place of business” was “so broad it is beyond the
court’s power to order and the defendant’s power to obey.”

        The government then raised the appellate waiver issue for
the first time, arguing that Goodson had knowingly waived his
right to challenge this portion of his sentence.1 The government


       1
        The government could have raised the applicability of
Goodson’s appellate waiver prior to briefing on the merits of the
appeal by filing a motion for summary action under Third
Circuit L.A.R. 27.4, seeking enforcement of the appellate
waiver and dismissal of the appeal. Consistent with Third
Circuit I.O.P. 10.6, the government would have been afforded
an opportunity to submit argument in support of its motion,
together with the copies of the plea agreement and plea
colloquy. The defendant also would have been afforded the

                               8
cited Goodson’s failure either to mention the appellate waiver
in his initial brief or to explain why the issue he was raising was
not encompassed by the waiver. In addition, the government
addressed the merits of Goodson’s challenge to the condition of
supervised release requiring that he consent to a search of his
business.

       Goodson filed a reply brief. In it, he argued that the
appellate waiver did not clearly and unambiguously preclude a
challenge to the conditions of supervised release, and he
asserted that the burden was on the government to demonstrate
that the waiver extended to the question in this appeal, i.e.,
“whether the term ‘sentence’ clearly and unambiguously
includes any and all conditions of supervised release,
particularly those not suggested by the statute.” According to
Goodson, “sentence” means only the term of incarceration.
Moreover, Goodson argued in his reply brief that his waiver was
neither knowing nor voluntary because the District Court failed
to conduct an adequate colloquy under Federal Rule of Criminal
Procedure 11(b)(1)(N).

                                II.

       The District Court exercised jurisdiction under 18 U.S.C.
§ 3231. In United States v. Gwinnett, 483 F.3d 200, 203 (3d Cir.
2007), we declared that we have “subject matter jurisdiction


opportunity to submit opposition to such a motion.

                                9
over the appeal by a defendant who had signed an appellate
waiver.” Our jurisdiction arises under 18 U.S.C. § 3742(a).
See United States v. Cooper, 437 F.3d 324, 327-28 (3d Cir.
2006).

                               III.

        In United States v. Khattak, 273 F.3d 557 (3d Cir. 2001),
we held that “waivers of appeals are generally permissible if
entered into knowingly and voluntarily, unless they work a
miscarriage of justice.” Id. at 558. After concluding that
Khattak’s waiver was enforceable, we declared that we lacked
jurisdiction to consider the merits of his appeal. Id. at 563.
Because we tied the validity of an appellate waiver to appellate
jurisdiction, defendants routinely addressed the validity and
enforceability of such waivers in the initial appellate brief.

         Subsequently, in Gwinnett, we clarified that
“notwithstanding the statement in Khattak, this court retains
subject matter jurisdiction over the appeal by a defendant who
had signed an appellate waiver.” 483 F.3d at 203 (discussing
Khattak, 273 F.3d at 563). Because an appellate waiver is not
dispositive of whether we may exercise appellate jurisdiction, it
is unclear in the wake of Gwinnett whether a defendant must
affirmatively address the applicability of an appellate waiver in
his opening brief. In other words, we must decide in the matter
before us whether a defendant may wait and question for the
first time in his reply brief the government’s contention that the

                               10
appellate waiver bars his appeal. If he may not, then a
defendant’s silence in his opening brief regarding the non-
applicability of the waiver will constitute an abandonment of
any challenge to the government’s invocation of the waiver.

        In our view, judicial efficiency is the only basis that
weighs in favor of requiring a defendant to affirmatively address
the applicability of an appellate waiver in his opening brief, and
then only slightly. Our standard briefing schedule does not
provide an opportunity for the government to respond to
arguments raised in a defendant’s reply brief. Accordingly,
strict adherence to the standard three-step order of battle could
result in a waiver issue being inadequately briefed. Permission
to allow the government to file a sur reply elongates the process
by adding an additional step, with whatever additional time and
resources such a step requires. This, however, seems a small
price to pay in exchange for the assurance that both a defendant
and the government will have an adequate opportunity to fully
address the validity vel non of an appellate waiver.

       The judicial efficiency argument is outweighed by
several reasons that favor permitting a defendant to wait until
the government first chooses to invoke the waiver. First, it is,
by and large, the government that bargains for and benefits from
an appellate waiver in a plea agreement. See United States v.
Hahn, 359 F.3d 1315, 1328 (10th Cir. 2004) (en banc). For that
reason, if the government seeks to preserve the benefit of its
bargain for an appellate waiver, we believe it is incumbent upon

                               11
the government to invoke the waiver’s applicability in the first
instance.2 Indeed, in United States v. Hall, 515 F.3d 186 (3d
Cir. 2008), we noted that the Government did not move to
summarily affirm the appeal or to enforce the waiver. Because
the government addressed Hall’s arguments on the merits, we
did likewise. Id. at 193-94. Thus, we acknowledged that an
appellate waiver may have no bearing on an appeal if the
government does not invoke its terms. See also United States v.
Story, 439 F.3d 226 (5th Cir. 2006) (concluding that when the
government does not seek to enforce an appellate waiver, the
waiver is not binding). Once invoked, however, the waiver is at
issue and the defendant should be afforded the opportunity to
respond in his reply brief to the government’s contention that the




       2
         To obtain the full benefit of its bargain, we emphasize
that the government may file a motion for summary action under
Third Circuit L.A.R. 27.4 to enforce the waiver and to dismiss
the appeal. The defendant may then submit argument in
opposition. See Third Circuit I.O.P. 10.6. A motions panel will
then rule on the enforceability of the waiver. This approach is
beneficial to the government because briefing at this stage is
limited to the validity and scope of the waiver. See United
States v. Hahn, 359 F.3d 1315, 1328 (10th Cir. 2004) (en banc)
(adopting intra-circuit procedure, which encourages the
government to file a motion to enforce, which addresses the
validity and scope of the waiver, “but not the underlying merits
of the defendant’s appeal”).

                               12
waiver is enforceable and warrants dismissal of the appeal.3

       In other words, the mere fact that a plea agreement
contains a waiver of a defendant’s right to file a direct appeal
does not mean that the enforceability of that waiver is
automatically at issue in that appeal. This is so because the
government may always choose not to invoke an appellate
waiver.4 Where the government has not first invoked an

       3
        Our acknowledgment that the government usually
bargains for and benefits from an appellate waiver is consistent
with the well-established principle that “‘[p]lea agreements,
although arising in the criminal context, are analyzed under
contract law standards[.]’” United States v. Williams, 510 F.3d
416, 422 (3d Cir. 2007) (quoting United States v. Nolan-Cooper,
155 F.3d 221, 236 (3d Cir.1998)). Although it is an imperfect
analogy, in the civil context, “waiver” and the validity of a
contractual provision are affirmative defenses that must be
pleaded by the party seeking to avoid liability. F ED. R. C IV. P.
8(c). We do not expect a plaintiff to raise invalidity in her
complaint. Thus, the approach we set forth is not only logical
inasmuch as it requires the party relying upon a waiver provision
to affirmatively invoke it, it is also in conformity with our
traditional regime of resolving waiver issues in civil litigation.
       4
       There are any number of reasons that the government
may choose not to invoke the waiver. For example, the
government may be of the view that the best way to address the
defendant’s challenge is on the merits of the issue raised.
Alternatively, the government may recognize that the waiver

                               13
appellate waiver, there is no reason for any party to address the
enforceability of the waiver. Allowing the defendant to respond
in his reply brief to the government’s invocation of a waiver,
however, requires the government in the first instance to do the
heavy lifting and to explain why an appellate waiver should
preclude our review.

        The second reason for allowing a defendant to address
the inapplicability of an appellate waiver in his reply brief is
because a defendant may file his opening brief with a reasonable
belief that the appellate waiver in his plea agreement does not
extend to the issue or issues raised in his appeal. Indeed, in
Khattak, we expressed our belief that “waivers of appeals should
be strictly construed.” 273 F.3d at 562. Thus, the language of
a waiver, like the language of a contract, matters greatly. If a
waiver provides limited grounds for appeal, it follows that some
appeals will not be barred by an appellate waiver. If the
government believes that a waiver prohibits the appeal,
however, it may invoke the waiver and set forth the reasons why
we should find it precludes our review. A defendant, however,
should not be foreclosed from asserting in his reply brief what
may be a meritorious argument concerning the unenforceability
of an appellate waiver he does not believe bars our review.




does not encompass the issue raised by the defendant, or that the
Rule 11 colloquy was deficient and that the waiver might not be
enforceable.

                               14
        Third, we must be mindful that the federal criminal rules
seek to protect a defendant who agrees to waive his appeal
rights by mandating in Rule 11(b)(1)(N) that “[b]efore the
[district] court accepts a plea of guilty . . . 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.” F ED. R. C RIM. P. 11(b)(1)(N).
This provision was adopted because the Advisory “Committee
believed it was important to insure first, a complete record exists
regarding any waiver provisions, and second, that the waiver
was voluntarily and knowingly made by the defendant.” Id.
(Advisory Committee Notes, 1999 Amendment) (discussing
subdivision (c)(6), which became part of subdivision (b)(1) with
reorganization in 2002). These procedural protections, we
believe, strongly militate in favor of affording a defendant an
opportunity to dispute in his reply brief whether his waiver
prohibits his appeal. Indeed, were we to hold that a defendant
forfeited his opportunity to challenge the validity and
enforceability of an appellate waiver merely by not having done
so in his opening brief, we would be adopting an approach that
conflicts with the spirit and purpose of Rule 11(b)(1)(N).

       We recognize that in United States v. Miliano, 480 F.3d
605 (1st Cir. 2007), the First Circuit declared that

       a defendant who waives his right to appeal and

                                 15
       thereafter attempts to avoid the effect of the
       waiver must confront the waiver head-on. Where,
       as here, the defendant simply ignores the waiver
       and seeks to argue the appeal as if no waiver ever
       had been executed, he forfeits any right to
       contend either that the waiver should not be
       enforced or that it does not apply. . . . Miliano’s
       appeal is subject to dismissal for this reason
       alone.

Id. at 608. Miliano does not guide our analysis, however,
because the defendant in Miliano effectively abandoned any
challenge to the validity of the appellate waiver by failing to
discuss the waiver in either his initial brief or his reply brief.

       In sum, we hold that a defendant is not obliged in his
opening brief to acknowledge the existence of an appellate
waiver and/or to explain why the waiver does not preclude
appellate review of the substantive issue raised. Rather, it is
only after the government has invoked an appellate waiver as a
bar to our review that a defendant must raise any challenge to
the waiver’s enforceability.5

       Because the government has invoked the appellate waiver

       5
        We by no means suggest that a defendant should never
address the applicability of an appellate waiver in his opening
brief. Such an approach is, however, one of tactical importance
only.

                               16
contained in Goodson’s plea agreement, and because Goodson
attacks both the scope and the validity of the waiver in his reply
brief, we proceed to determine whether that waiver bars our
review of the condition of supervised release allowing
warrantless searches of his computer at his place of business.

                               IV.

        In United States v. Jackson, 523 F.3d 234 (3d Cir. 2008),
we considered whether a defendant’s waiver of her right to
appeal prohibited her from challenging the reasonableness of her
sentence. There, we enumerated three elements to be considered
when the government invokes an appellate waiver and the
defendant contends that the waiver does not bar her appeal: (1)
whether the waiver “of the right to appeal her sentence was
knowing and voluntary;” (2) “whether one of the specific
exceptions set forth in the agreement prevents the enforcement
of the waiver;” i.e., what is the scope of the waiver and does it
bar appellate review of the issue pressed by the defendant; and
(3) “whether enforcing the waiver would work a miscarriage of
justice.” Id. at 243-244.

                               A.

        Goodson’s appellate waiver was broad, waiving “the
right to take a direct appeal from his conviction or sentence
under 28 U.S.C. § 1291 or 18 U.S.C. § 3742,” unless (1) the
government appealed from the sentence, (2) the sentence

                               17
exceeded the applicable statutory limits set forth in the United
States Code, or (3) the sentence unreasonably exceeded the
guideline range determined by the District Court in applying the
United States Sentencing Guidelines.         Inasmuch as the
government did not appeal, and mindful that Goodson’s
sentence of 27 months exceeded neither the statutory limit of
twenty years for wire fraud nor the guideline range of 27-33
months determined by the District Court, it appears that the
waiver precludes appellate review.

       Goodson, however, contends that the special condition of
supervised release imposed by the District Court is excepted
from the appellate waiver because it is not among either the
mandatory or discretionary conditions set forth in the United
States Code, and thereby exceeds the applicable statutory limits.6
This is a creative argument, but it ignores the plain text of 18
U.S.C. § 3583(d), which enumerates both mandatory and
discretionary conditions of supervised release, and provides that
“[t]he court may order, as a further condition of supervised
release . . . any other condition it considers to be appropriate.”




       6
        We exercise plenary review in deciding whether an issue
raised by a defendant falls within the scope of an appellate
waiver in his plea agreement. United States v. Joyce, 357 F.3d
921, 922 (9th Cir. 2004).

                               18
18 U.S.C. § 3583(d).7 See United States v. Voelker, 489 F.3d
139, 143-44 (3d Cir. 2007) (recognizing that conditions other
than the listed mandatory and discretionary conditions of
supervised release in § 3583(d) may be imposed by a district
court in order to tailor the conditions to the specific offense and
offender).

       Alternatively, Goodson points out that Khattak requires
that we strictly construe the terms of an appellate waiver, 273
F.3d at 562, and he asserts that the waiver’s use of the term
“sentence” should be construed to mean only the term of
incarceration. We disagree.

          For a criminal defendant, a sentence is the
pronouncement by the sentencing court, pursuant to chapter 227
of the Federal Crimes Code concerning “Sentences,” of the
punishment for “a defendant who has been found guilty of an
offense . . . in any Federal statute . . . .” 18 U.S.C. § 3551(a).


       7
        Goodson also asserts that the special condition of
supervised release at issue exceeds the applicable guideline
because it is not among the mandatory or discretionary
conditions set forth in U.S.S.G. § 5D1.3. This argument also
falls short, because guideline § 5D1.3(b), like § 3583(d),
addresses the ability of the sentencing court to impose “other
conditions of supervised release” to the extent they are
reasonably related to some of the factors set forth in 18 U.S.C.
§ 3553(a).

                                19
Section 3551 provides that “a defendant who has been found
guilty of an offense described in any federal statute . . . shall be
sentenced in accordance with the provision of this chapter [227]
so as to achieve the purposes set forth in subparagraphs (A)
through (D) of section 3553(a)(2) . . . .” 18 U.S.C. § 3551.
Under chapter 227 of the Federal Crimes Code, the period of
incarceration is but one component of the sentence. Other
components may be probation under § 3561, supervised release
under § 3583, a fine under § 3571, and/or restitution under §
3556.

        Indeed, § 3583(a) provides that “[t]he court, in imposing
a sentence to a term of imprisonment for a felony . . . may
include as a part of the sentence a requirement that the
defendant be placed on a term of supervised release after
imprisonment.” 18 U.S.C. § 3583(a) (emphasis added).
Subsection (d) of this statutory provision enumerates certain
mandatory and discretionary conditions of supervised release
that a defendant must comply with during any such term of
supervision, and provides, as we noted above, that “[t]he court
may order, as a further condition of supervised release . . . any
other condition it considers to be appropriate.” 18 U.S.C. §
3583(d). Thus, the duration, as well as the conditions of
supervised release are components of a sentence. By waiving
his right to take a direct appeal of his sentence, Goodson waived
his right to challenge the conditions of his supervised release,
which were by definition a part of his sentence. See United
States v. Perez, 514 F.3d 296 (3d Cir. 2007) (concluding that

                                20
restitution, which was part of defendant’s sentence, was subject
to defendant’s appellate waiver).

        In our view, the text of the waiver before us establishes
that the term “sentence” as used in Goodson’s appellate waiver
applies to not only the period of incarceration that will be
imposed, but also any other component of punishment. By
stating that Goodson “waives the right to take a direct appeal
from his . . . sentence under . . . 18 U.S.C. § 3742,” the provision
explicitly bars any appeal relying upon § 3742 for jurisdiction.
Because § 3742 is the only statutory section that provides
jurisdiction for an appeal of a condition of supervised release,
Goodson’s waiver bars his challenge.

       In United States v. Joyce, the Ninth Circuit considered
this same issue. It reasoned:

       Despite the dual meaning of “sentence” in
       common usage, the statute that provides the only
       source of Joyce’s right to appeal is crystal clear.
       Under 18 U.S.C. § 3742(a)(3), a “sentence” can
       include fines, periods of imprisonment, and
       supervised release, and mandatory and special
       conditions of supervised release. That is the only
       statutory basis upon which Joyce may invoke the
       jurisdiction of this court to challenge any aspect
       of the sentence imposed, including an attack on
       specific conditions of his supervised release.



                                21
357 F.3d 921, 924 (9th Cir. 2004). The Tenth Circuit agreed
with this rationale in United States v. Sandoval, 477 F.3d 1204
(10th Cir. 2007), concluding that “[s]upervised-release
conditions are part of the sentence: and the reference to 18
U.S.C. § 3742 (the statutory basis for sentence appeals) in ¶ 10
of the plea agreement makes clear that the waiver encompasses
all appellate challenges to the sentence other than those falling
within the explicit exception for challenges to upward
departures.” Id. at 1207 (citing Joyce, 357 F.3d at 922-24). See
also United States v. Andis, 333 F.3d 886, 892 n.7 (8th Cir.
2003) (noting that waiver of “all rights to appeal whatever
sentence is imposed” included that “portion of sentence which
involved the imposition of a term of supervised release and its
conditions”); United States v. Sines, 303 F.3d 793, 798-99 n.3
(7th Cir. 2002) (finding that waiver of right to appeal any
portion of his sentence that was within the guideline range
constituted a waiver of Sines’s right to appeal the “terms of his
supervised release”).

       Accordingly, we hold that Goodson’s waiver of his right
to appeal his sentence under § 3742 encompassed his right to
appeal the conditions of his supervised release.8


       8
        Although we hold that the term “sentence” in Goodson’s
appellate waiver encompasses the conditions of supervised
release, we would add that the government is of course free to
include explicit language in its waivers detailing whether the
waiver applies to the right to appeal the term of incarceration

                               22
                                B.

       Inasmuch as Goodson’s challenge to the condition of
supervised release is within the scope of his appellate waiver,
we must consider his argument that his waiver was unknowing
and involuntary because the District Court did not conduct an
adequate colloquy under Federal Rule of Criminal Procedure
11(b)(1)(N). Rule 11(b)(1)(N), as we noted above, mandates
that “[b]efore the court accepts a plea of guilty . . . 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.”

                                 1.

        In United States v. Vonn, 535 U.S. 55 (2002), the
Supreme Court held that a defendant, who has not objected in
the trial court to a Rule 11 error, “has the burden to satisfy the
plain-error rule and that a reviewing court may consult the
whole record when considering the effect of any error on
substantial rights.” Id. at 59. Plain error requires that there must


alone, or all components of the sentence to be imposed. Such
language may have the advantage of avoiding future challenges
of this kind.


                                23
be (1) error, (2) that is plain or obvious, and (3) that affects a
defendant’s substantial rights. Johnson v. United States, 520
U.S. 461, 467 (1997); United States v. Olano, 507 U.S. 725, 732
(1993). “If all three conditions are met, an appellate court may
then exercise its discretion to notice a forfeited error, but only if
(4) the error seriously affect[s] the fairness, integrity, or public
reputation of judicial proceedings.” Johnson, 520 U.S. at 467
(quoting Olano, 507 U.S. at 732) (internal quotation marks
omitted). In conducting plain error review, it is the “defendant
rather than the Government who bears the burden of persuasion
with respect to” whether the error affected his substantial rights.
Olano, 507 U.S. at 734.

       In United States v. Edgar, 348 F.3d 867 (10th Cir. 2003),
the Tenth Circuit applied Vonn’s plain error standard in
reviewing a defendant’s contention that his appellate waiver was
unenforceable because his plea colloquy was deficient. The
Tenth Circuit noted Rule 11(b)(1)(N)’s requirements and
reasoned that “[i]n light of the clear text of Rule 11(b)(1)(N) and
the Supreme Court’s decision in Vonn, we see no reason why we
should treat Rule 11(b)(1)(N) any differently.” Id. at 870. The
Court instructed that “it is always error for a district court to fail
to discuss an appellate waiver provision during a Rule 11
colloquy, although not always reversible error.” Id. at 871.
Such error, the Court concluded, was also plain and obvious as
the congressional mandate in the Rule was clear. Id. at 871-72.
After considering the plea agreement and colloquy, the Court
concluded that Edgar had failed to meet his burden of

                                 24
establishing that he did not understand the waiver and that the
deficient colloquy had affected his substantial rights. Id. at 872-
73. As a result, the Court concluded the waiver was enforceable
and dismissed the appeal.

       The Sixth, Seventh, and Ninth Circuit Courts of Appeals
also have applied plain error review to a defendant’s claim that
his appellate waiver should be unenforceable because of an
inadequate colloquy. See United States v. Arellano-Gallegos,
387 F.3d 794, 796 (9th Cir. 2003); United States v. Murdock,
398 F.3d 491, 496 (6th Cir. 2005); United States v. Sura, 511
F.3d 654, 658 (7th Cir. 2008). We agree with our sister courts
of appeals that Vonn’s plain error standard of review should be
applied when assessing whether there was a violation of Rule
11(b)(1)(N), which warrants setting an appellate waiver aside.9


       9
         We note that Vonn’s plain error standard applies only to
unobjected-to violations of Fed. R. Crim. P. 11, where the
district court has failed to “inform the defendant of, and
determine that the defendant understands,” a factor enumerated
in Rule 11(B)(1), including the waiver of the right to appeal or
collaterally attack the sentence. The plain error standard does
not apply when a defendant’s challenge to the knowing or
voluntary nature of a waiver does not involve the district court’s
compliance with the plea colloquy required by the Rule. For
example, a defendant who claims that he was misled or coerced
into entering the agreement, or that he was incompetent when he
signed the waiver, challenges the validity of the waiver itself,
not the Rule 11 colloquy. Such a challenge would receive de

                                25
                                2.

         Consistent with Vonn’s plain error standard, we consult
the “whole record” in determining whether there is a basis for
holding Goodson’s appellate waiver unenforceable. In light of
the circumstances surrounding Goodson’s agreement to enter a
plea, the plain language of the plea agreement and the District
Court’s colloquy, we conclude that there was error and that the
error was obvious in light of the plain dictates of Rule
11(b)(1)(N). The rule clearly provides that the District Court
“must address the defendant personally” and “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.” F ED. R. C RIM. P.
11(b)(1)(N).       Here, the District Court relied upon the
prosecutor’s recitation of the terms of the appellate waiver to
fulfill its obligation to inform the defendant of the specifics of
the waiver provision. This was error. Although the Court did
ask Goodson personally whether he understood that he had
given up substantial appellate rights, we cannot ignore that there
was no effort to verify that Goodson understood the breadth of
the waiver or to underscore the fact that the waiver meant that,
subject to three very narrow exceptions, Goodson was giving up


novo review without the need for objection in the district court.
See United States v. Gwinnett, 483 F.3d 200, 203 (3d Cir. 2007);
United States v. Khattak, 273 F.3d 557, 560 (3d Cir. 2001).


                               26
the right to appeal both the validity of his plea and the legality
of his sentence. This too was error.10 See Edgar, 348 F.3d at
871; Arellano-Gallegos, 387 F.3d at 796-97; Murdock, 398 F.3d
at 497; and Sura, 511 F.3d at 661.

       Our inquiry is not limited, however, to whether there was
a technical violation of Rule 11. Rather, we must determine
whether Goodson, who bears the burden of persuasion, Olano,


       10
         This error was compounded, in our view, by the
government’s failure to ask the District Court to comply with the
mandate of Rule 11(b)(1)(N). We pause to remind district
courts of the centrality of their role in assuring that defendants
fully understand the scope and terms of an appellate waiver. See
Khattak, 273 F.3d at 563 (observing that the role of the district
judge “is critical”). We believe that the directive in Rule
11(b)(1)(N) is best effectuated when the district courts advise
the defendants of the specifics of the appeal waiver and
ascertain whether defendants understand: the specifics of the
appellate waiver; its breadth; the limited exceptions that may be
set forth in the waiver; and the frequency or infrequency with
which such an exception occurs. For example, Goodson’s
waiver allowed for an appeal if his sentence exceeded the
statutory maximum for the offense of conviction. This
exception is unlikely to occur. As a result, to the extent a
defendant perceives that the exception provides him some
avenue to seek relief, a colloquy intended to dispel that view is
likely to achieve Rule 11's purpose of assuring that the waiver
was both knowing and voluntary.

                               27
507 U.S. at 734, has demonstrated that the deficient colloquy
affected his substantial rights by precluding him from knowing
of and understanding the significance of the binding appellate
waiver in the plea agreement. Here, the evidence demonstrates
that Goodson was college educated, and had successfully
perpetrated wire fraud and the uttering of counterfeit checks,
that he was able to read the plea letter and to comprehend the
meaning of its provisions, that the District Court explained that
his punishment would include a period of supervised release,
that the prosecutor generally discussed the terms of the appellate
waiver, and that Goodson advised the Court that he understood
that his right to appeal was substantially limited. In fact, the day
before the change of plea hearing, Goodson had executed the
acknowledgment on the final page of his plea agreement,
indicating that he had read the agreement, which included the
appeal waiver, and discussed it with his counsel. His counsel
also witnessed Goodson’s execution of the document.

        Under these circumstances, we conclude that Goodson
has failed to meet his burden of proving that the deficient Rule
11 colloquy precluded him from understanding that he had a
right to appeal and that he had substantially agreed to give up
that right. We hold that Goodson’s substantial rights were not
affected by the inadequate colloquy. In the absence of plain
error under Vonn, there is no basis for setting aside the appellate




                                28
waiver in this case.11 Cf. Murdock, 398 F.3d at 498 (concluding
that complete omission in Rule 11 colloquy affected defendant’s
substantial rights, but noting that it might be sufficient for a
prosecutor to summarize the key elements of a plea agreement
and to address the scope of an appellate waiver); Arellano-
Gallegos, 387 F.3d at 797 (setting aside appellate waiver



       11
         In Olano, the Supreme Court explained that “Rule 52(b)
is permissive, not mandatory. If the forfeited error is ‘plain’ and
‘affect[s] substantial rights,’ the court of appeals has authority
to order correction, but is not required to do so.” 507 U.S. at
735. The Supreme Court further noted that it had “previously
explained that the discretion conferred by Rule 52(b) should be
employed in those circumstances in which a miscarriage of
justice would otherwise result.” Id. at 736 (omitting citations
and internal quotation marks). It declared, however, that “the
standard that should guide the exercise of remedial discretion
under Rule 52(b)” is that the “Court of Appeals should correct
a plain forfeited error affecting substantial rights if the error
seriously affects the fairness, integrity or public reputation of
judicial proceedings.” Id. at 736 (citation, internal quotation
marks and brackets omitted). Because we have determined that
the Rule 11 error did not affect Goodson’s substantial rights, we
also conclude that the enforcement of the waiver will not work
a miscarriage of justice. See Jackson, 523 F.3d at 244
(instructing that the third element to be considered in deciding
whether an appellate waiver is enforceable is whether
enforcement would constitute a miscarriage of justice).


                                29
because there was a “wholesale omission” of the appellate
waiver in the Rule 11 colloquy); see also Sura, 511 F.3d at 662
(noting that utter silence about waiver of appellate rights
supported a finding that defendant’s substantial rights were
affected by deficient colloquy).

                              V.

       For the reasons set forth above, we conclude that
Goodson’s appeal of one of the conditions of his supervised
release is subject to the appellate waiver contained in his plea
agreement. Although the District Court’s colloquy regarding the
appellate waiver was less than Rule 11(b)(1)(N)’s ideal, the
record fails to demonstrate that the error affected Goodson’s
substantial rights. Accordingly, we conclude that the appellate
waiver is enforceable and we will affirm the judgment of the
District Court.




                              30
