                     United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 01-1272
                                    ___________

United States of America,                *
                                         *
      Plaintiff - Appellee,              *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Eastern District of Missouri.
John Robert Andis,                       *
                                         *
      Defendant - Appellant.             *
                                    ___________

                               Submitted: September 11, 2002

                                   Filed: June 27, 2003 (Corrected: 07/16/03)
                                    ___________

Before HANSEN,1 Chief Judge, BRIGHT, McMILLIAN, BOWMAN, WOLLMAN,
LOKEN, MORRIS SHEPPARD ARNOLD, MURPHY, BYE, RILEY, MELLOY,
and SMITH, Circuit Judges, en banc.
                                ___________

MELLOY, Circuit Judge.

      We granted en banc review of this appeal to determine under what
circumstances a defendant can effectively waive appellate rights as part of a valid
plea agreement. In this case, John R. Andis entered into a plea agreement that


      1
       The Honorable David R. Hansen stepped down as Chief Judge of the United
States Court of Appeals for the Eighth Circuit at the close of business on March 31,
2003. He has been succeeded by the Honorable James B. Loken.
significantly limited his appellate rights.2 In spite of the waiver in his plea agreement,
Mr. Andis now appeals certain conditions of his supervised release, claiming the
conditions constitute an illegal sentence and therefore the waiver does not bar him
from bringing this appeal.

       A panel of this Court originally remanded this case to the district court3 for
further consideration of the conditions of Mr. Andis’s supervised release. See United
States v. Andis, 277 F.3d 984 (8th Cir. 2002). We vacated the panel decision and
ordered an en banc rehearing. We now hold that although a defendant generally can
waive appellate rights, such a waiver is subject to certain limitations. We also hold
that because Mr. Andis entered into a plea agreement that contained a valid waiver
of his appellate rights and the sentence imposed was not illegal, the conditions of his
supervised release may not be reviewed on appeal. As a result, his appeal is
dismissed.

                                     I. Overview

        On October 16, 2000, Mr. Andis entered into a “Stipulation of Facts Relative
to Sentencing,” which included a plea agreement (the “Agreement”). In the
Agreement, he pled guilty to one count of transporting a minor in interstate commerce
for illegal sexual activity in violation of 18 U.S.C. § 2423(a). In exchange for the
Government’s dismissal of the remaining counts in the indictment and promise not

      2
        Although Mr. Andis’s plea agreement waived both his appellate rights and his
post-conviction rights under 28 U.S.C. § 2255, this appeal concerns only a
defendant’s waiver of appellate rights. We note, however, that we have often viewed
these two rights as synonymous. See, e.g., DeRoo v. United States, 223 F.3d 919,
923 (8th Cir. 2000) (“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.”)
      3
       The Honorable Stephen N. Limbaugh, United States District Judge for the
Eastern District of Missouri.
                                    -2-
to further prosecute him for events related to transporting a fourteen-year-old girl for
the purpose of engaging in sexual conduct, Mr. Andis agreed to waive certain
statutory and constitutional rights, including most of his appellate rights. The
relevant portions of the Agreement provided that:

      In the event the District Court accepts the plea agreement . . . defendant
      understands that as part of this agreement, both the defendant and the
      Government hereby mutually agree to waive all rights to appeal
      whatever sentence is imposed, including any issues that relate to the
      establishment of the Guideline range, reserving only the right to appeal
      from an upward or downward departure from the Guideline range that
      is established at sentencing. In this regard, the parties expressly
      acknowledge that no agreement has been reached as to issues pertinent
      to the Guidelines calculation, except as found in this section of the
      Stipulation. These issues are left for the District Court’s determination;
      the District Court’s decision shall not be subject to appeal. The
      defendant states that he is fully satisfied with the representation he has
      received from his counsel, that they have discussed the Government’s
      case, possible defenses and defense witnesses, and that his counsel has
      completely and satisfactorily explored all areas which the defendant has
      requested relative to the Government’s case and his defense, and in light
      of this, the defendant further agrees to waive all rights to contest the
      conviction or sentence, except for grounds of prosecutorial misconduct
      or ineffective assistance of counsel, in any post-conviction proceeding,
      including one pursuant to Title 28, U.S.C., Section 2255.

       On appeal, Mr. Andis claims that despite waiving his appellate rights, he
implicitly retained the right to appeal an illegal sentence. In particular, he argues that
the conditions of his supervised release are illegal because they are generic conditions
imposed without regard to the specific characteristics of his crime as required by 18
U.S.C. § 3583(d). The Government contends that Mr. Andis waived his right to
appeal his sentence regardless of whether the conditions imposed render it illegal.
Alternatively, the Government argues that if Mr. Andis retained the right to appeal
an illegal sentence, then the conditions of his supervised release do not constitute
such an illegal sentence.
                                           -3-
              II. Waiver of Appellate Rights in Plea Agreements

       Before analyzing the specifics of Mr. Andis’s appeal, we take this opportunity
to review and clarify this Circuit’s position on the use of appeal waivers in plea
agreements.

       As a general rule, a defendant is allowed to waive appellate rights. Every
circuit that has considered this issue has reached the conclusion that at least some
forms of appeal waivers are permissible. See generally United States v. Teeter, 257
F.3d 14, 21-27 (1st Cir. 2001); United States v. Hernandez, 242 F.3d 110, 113-14 (2d
Cir. 2001); United States v. Khattak, 273 F.3d 557, 559-63 (3d Cir. 2001); United
States v. Brown, 232 F.3d 399, 402-06 (4th Cir. 2000); United States v. Melancon,
972 F.2d 566, 567 (5th Cir. 1992); United States v. Fleming, 239 F.3d 761, 764 (6th
Cir. 2001); United States v. Jemison, 237 F.3d 911, 916-18 (7th Cir. 2001); United
States v. Nguyen, 235 F.3d 1179, 1182-84 (9th Cir. 2000); United States v. Rubio,
231 F.3d 709, 711-13 (10th Cir. 2000); United States v. Howle, 166 F.3d 1166, 1168-
69 (11th Cir. 1999). On numerous occasions, we have also acknowledged the general
permissibility of including these waivers in plea agreements. See, e.g., DeRoo v.
United States, 223 F.3d 919, 923-24 (8th Cir. 2000); United States v. Morrison, 171
F.3d 567, 568 (8th Cir. 1999); United States v. Michelsen, 141 F.3d 867, 868-73 (8th
Cir. 1998).

       The policy reasons supporting an appeal waiver were summarized in United
States v. Rutan:

      [t]he chief virtues of plea agreements are speed, economy, and finality.
      Waivers of appeal in plea agreements preserve the finality of judgments
      and sentences imposed pursuant to valid pleas of guilty. We also note
      that plea agreements are of value to the accused in order to gain
      concessions from the government.

956 F.2d 827, 829 (8th Cir. 1992) (internal citations omitted).
                                        -4-
       We further note that the right to appeal is not a constitutional right but rather
“purely a creature of statute.” Abney v. United States, 431 U.S. 651, 656 (1977); see
18 U.S.C. § 3742. The Supreme Court has held that a defendant can waive certain
constitutional rights by entering a guilty plea. For example, in Parke v. Raley, 506
U.S. 20 (1992), the Supreme Court stated that “a guilty plea constitutes a waiver of
three constitutional rights: the right to a jury trial, the right to confront one’s accusers,
and the privilege against self-incrimination.” Id. at 29; see also United States v. Gray,
152 F.3d 816, 819-20 (8th Cir. 1998) (discussing the constitutional rights a defendant
waives by entering a guilty plea and citing to Parke). Given that the Supreme Court
has allowed a defendant to waive constitutional rights, we would be hard-pressed to
find a reason to prohibit a defendant from waiving a purely statutory right. Other
circuits have adopted a similar rationale for approving the use of these waivers. See,
e.g., Teeter, 257 F.3d at 21-22; Khattak, 273 F.3d at 561; United States v. Navarro-
Botello, 912 F.2d 318, 321 (9th Cir. 1990).

      We see no rational basis for challenging the general premise that a defendant
can enter into a plea agreement that waives appellate rights. We have, however,
imposed limits on the use of these waivers and we reaffirm these limits here. When
reviewing a purported waiver, we must confirm that the appeal falls within the scope
of the waiver and that both the waiver and plea agreement were entered into
knowingly and voluntarily. Even when these conditions are met, however, we will
not enforce a waiver where to do so would result in a miscarriage of justice.

       A. Scope of Waiver

      Plea agreements are essentially contracts between the defendant and
Government. Margalli-Olvera v. INS, 43 F.3d 345, 351 (8th Cir. 1995). However,
these agreements are subject to special limitations given their unique nature.
Significantly, this Court stated in Margalli-Olvera that “[a]pplication of these contract
principles is tempered by the constitutional implications of a plea agreement.” Id.
Also important was our statement that “[w]here a plea agreement is ambiguous, the
                                          -5-
ambiguities are construed against the government.” Id. at 353. Interpreting plea
agreements in this manner reflects the fact that these agreements are normally drafted
by the Government and involve significant rights of a defendant. As such, the burden
of proof is on the Government to demonstrate that a plea agreement clearly and
unambiguously waives a defendant’s right to appeal. Id.

       In United States v. Hernandez, the Second Circuit stated that while waivers of
appellate rights are generally valid, these waivers “are to be applied ‘narrowly’ and
construed ‘strictly against the Government.’” 242 F.3d 110, 113 (2001) (internal
citation and quotations omitted). The court then concluded that the waiver in
Hernandez did not prohibit the defendant from challenging the district court’s refusal
to allow him to withdraw a guilty plea. Id. at 114. We agree with the position taken
by the Second Circuit. Plea agreements will be strictly construed and any ambiguities
in these agreements will be read against the Government and in favor of a defendant’s
appellate rights.

      B. Knowing and Voluntary

      A defendant must enter into a plea agreement and waiver knowingly and
voluntarily for these agreements to be valid. See DeRoo, 223 F.3d at 923; Morrison,
171 F.3d at 568; Michelsen, 141 F.3d at 871. This is the same standard the Supreme
Court has required for all guilty pleas. See United States v. Gray, 152 F.3d 816, 819
(8th Cir. 1998) (citing Parke v. Raley, 506 U.S. at 28).

      The requirement that a plea agreement and waiver be entered into knowingly
and voluntarily applies to each term of an agreement. For example, a defendant may
knowingly and voluntarily enter into a plea agreement waiving the right to a jury trial,
but nonetheless fail to have knowingly and voluntarily waived other rights–including
appellate rights. There are many ways in which an agreement, or aspects of an
agreement, could be entered into without the requisite knowledge or voluntariness.

                                          -6-
Examples include an agreement entered into upon the ineffective assistance of
counsel, DeRoo, 223 F.3d at 924, or undue coercion.4

       One important way a district court can help ensure that a plea agreement and
corresponding waiver are entered into knowingly and voluntarily is to properly
question a defendant about his or her decision to enter that agreement and waive the
right to appeal. We have yet to address the impact of an erroneous statement by a
district court at the time a plea agreement is accepted and decline to do so here.5
However, because an erroneous statement, or failure to make a determination as
required under Fed. R. Crim. P. 11(b)(1)(N), can create potential error, a district court
should endeavor to correctly address any waiver in a plea agreement and ascertain
that a defendant has knowingly and voluntarily waived the rights addressed by the
agreement.



      4
       Although we have not yet decided a case alleging such coercion, the First
Circuit has allowed a defendant to challenge a facially valid waiver because it was
entered into as a result of undue coercion from the court. Worcester v.
Commissioner, 370 F.2d 713 (1st Cir. 1966); but see Teeter, 257 F.3d at 21 n.3
(explaining that “the court [in Worcester] had pressured the taxpayer-defendant into
waiving his right to appeal in exchange for a lighter sentence” and the agreement was
not one “between the prosecution and the defense.”) (emphasis in original).
      5
       We note that this Court in Michelsen addressed erroneous statements made by
the court at a defendant’s sentencing hearing and determined that the district court’s
erroneous statements did not negate a waiver of appellate rights. 141 F.3d at 872.
This position has been adopted by other circuits. See United States v. Fisher, 232
F.3d 301, 304-05 (2d Cir. 2000) (stating that the Second Circuit joins the Fifth, Sixth,
Eighth, and Tenth in determining that an erroneous statement made post-sentencing
did not negate the waiver of appellate rights, but noting, however, that such a
statement could result in a finding that the plea agreement was ambiguous).

        What has not been addressed by this Circuit is the impact an erroneous
statement, about a defendant’s appellate rights, will have on the validity of a waiver
if that statement is made when a plea agreement is accepted by the district court.
                                        -7-
         Following this process should also help a district judge determine whether to
accept a plea agreement. In general, a district judge is under no obligation to accept
a plea agreement. See Fed. R. Crim. P. 11(c) (stating that the district court has the
authority to reject most plea agreements). The authority to reject a plea agreement,
if it is inequitable or otherwise objectionable, operates as a further check on either
party’s over-reaching.

      C. Miscarriage of Justice

       Assuming that a waiver has been entered into knowingly and voluntarily, we
will still refuse to enforce an otherwise valid waiver if to do so would result in a
miscarriage of justice. Although we have not previously defined this exception, we
have described many of its components. See DeRoo, 223 F.3d at 923-24 (stating that
a waiver of appellate rights does not prohibit the appeal of an illegal sentence or a
sentence in violation of the terms of an agreement, or a claim asserting ineffective
assistance of counsel); Michelsen, 141 F.3d at 872 n.3 (describing the right to appeal
an illegal sentence).

       Other circuits have adopted the miscarriage of justice exception and included
within this exception, inter alia, sentences based on constitutionally impermissible
factors (e.g., race) and claims asserting ineffective assistance of counsel. See, e.g.,
Teeter, 257 F.3d at 25 n.9 & 10 (stating that the court would address, inter alia,
sentences based on constitutionally impermissible factors, even when a valid waiver
existed); Khattak, 273 F.3d at 562 (discussing circumstances where other circuits
have found appeal waivers to be invalid).

       Although we have not provided an exhaustive list of the circumstances that
might constitute a miscarriage of justice, we recognize that these waivers are
contractual agreements between a defendant and the Government and should not be
easily voided by the courts. As such, we caution that this exception is a narrow one

                                         -8-
and will not be allowed to swallow the general rule that waivers of appellate rights
are valid.

        As the miscarriage of justice exception relates to Mr. Andis’s appeal, we
reaffirm that in this Circuit a defendant has the right to appeal an illegal sentence,
even though there exists an otherwise valid waiver. See DeRoo, 223 F.3d at 923;
Michelsen, 141 F.3d at 872.6 In United States v. Greatwalker, we explained that “[a]
sentence is illegal when it is not authorized by the judgment of conviction or when
it is greater or less than the permissible statutory penalty for the crime.” 285 F.3d 727,
729 (8th Cir. 2002). In United States v. Peltier, we recently addressed what
constitutes an illegal sentence:

      [a] sentence is illegal when it is not authorized by law; for example,
      when the sentence is “in excess of a statutory provision or otherwise
      contrary to the applicable statute.” A sentence is not illegal if the
      “punishment meted out was not in excess of that prescribed by the
      relevant statutes . . . or the terms of the sentence itself are not legally or
      constitutionally invalid in any other respect.”

312 F.3d 938, 942 (8th Cir. 2002) (internal citations omitted).

       We wish to make clear that the illegal sentence exception to the general
enforceability of an appeal waiver is an extremely narrow exception. Any sentence
imposed within the statutory range is not subject to appeal. Specifically, an allegation
that the sentencing judge misapplied the Sentencing Guidelines or abused his or her
discretion is not subject to appeal in the face of a valid appeal waiver. Other circuits


      6
        We wish to emphasize that a defendant has the right to challenge an illegal
sentence on direct appeal and does not have to rely solely on his post-conviction
remedies. To the extent this holding conflicts with our opinion in Rutan, where we
stated that “an illegal sentence can still be challenged under 28 U.S.C. § 2255 for
habeas corpus relief, so a defendant is not entirely without recourse from an
erroneous sentence,” 956 F.2d at 829-30, that narrow portion of Rutan is overruled.
                                           -9-
have explicitly addressed these situations. See, e.g., United States v. Brown, 232
F.3d 399, 403 (4th Cir. 2000) (“an express waiver of [a defendant’s] right to appeal,
which was knowing and voluntary, [precludes] an appeal based on [a] claim that [a]
district court misapplied the Guidelines.”); United States v. Atterberry, 144 F.3d
1299, 1300 (10th Cir. 1998) (dismissing the defendant’s appeal of the base offense
level used by the district court in determining his sentence, because he had waived
his appellate rights); United States v. Feichtinger, 105 F.3d 1188, 1190 (7th Cir.
1997) (“an improper application of the guidelines is not a reason to invalidate a
knowing and voluntary waiver of appeal rights.”).

                              III. Mr. Andis’s Appeal

      Having reviewed this Circuit’s approach to the waiver of appellate rights, we
now examine Mr. Andis’s argument that in spite of his waiver we should allow him
to appeal the conditions of his supervised release. We find that the challenged
conditions do not constitute an illegal sentence and, as such, dismiss his appeal.

       It is undisputed that the scope of Mr. Andis’s waiver includes the conditions
of his supervised release,7 and he does not claim that the waiver was entered into
unknowingly or involuntarily. There is also no allegation that the district court failed
to comply with Federal Rule of Criminal Procedure 11 in accepting Mr. Andis’s
guilty plea. Accordingly, we may consider Mr. Andis’s appeal only if our failure to
do so would constitute a miscarriage of justice.




      7
        In the Agreement Mr. Andis acknowledged that he “waive[d] all rights to
appeal whatever sentence is imposed.” Because the court sentenced Mr. Andis to
eighteen months of incarceration, the court was “required to impose a term of
supervised release to follow imprisonment.” U.S.S.G. §5D1.1, app. n.1. Therefore,
Mr. Andis’s waiver included that portion of his sentence which involved the
imposition of a term of supervised release and its conditions.
                                        -10-
        Mr. Andis attempts to make this showing by arguing that the conditions of his
supervised release constitute an illegal sentence. Specifically, he claims that the
district court imposed five illegal conditions on his supervised 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 or maintenance of a post office box
             or other type of private mailbox without written approval of the
             probation officer.

      Were this appeal to address the length of Mr. Andis’s imprisonment, we would
simply need to review the length of time authorized by statute to determine whether
his sentence was legal and his appeal should be summarily dismissed based on his
waiver. Mr. Andis, however, is appealing the conditions of his supervised release.
The statutory provision states:

      The court may order, as a further condition of supervised release, to the
      extent such condition–

      (1)    is reasonably related to the factors set forth in section 3553(a)(1),
             (a)(2)(B), (a)(2)(C), and (a)(2)(D);


                                         -11-
      (2)    involves no greater deprivation of liberty than is reasonably
             necessary for the purposes set forth in section 3553(a)(2)(B),
             (a)(2)(C), and (a)(2)(D); and

      (3)    is consistent with any pertinent policy statements issued by the
             Sentencing Commission pursuant to 28 U.S.C. 994(a);

      any condition set forth as a discretionary condition of probation in
      section 3563(b)(1) through (b)(10) and (b)(12) through (b)(20), and any
      other condition it considers to be appropriate.

18 U.S.C. § 3583(d).

       This statutory provision provides the district court with broad discretion to
impose conditions the court considers to be appropriate in setting a term of supervised
release. United States v. Bass, 121 F.3d 1218, 1223 (8th Cir. 1997). If an appeal
waiver did not exist, this Court would examine the conditions of Mr. Andis's
supervised release under an abuse of discretion standard. See United States v. Scott,
270 F.3d 632, 635 (8th Cir. 2001) (describing the standard used to determine if a
district court abused its discretion in imposing the conditions of supervised release);
United States v. Kent, 209 F.3d 1073, 1075-78 (8th Cir. 2000) (finding that the
district court abused its discretion); Bass, 121 F.3d at 1223 (same); United States v.
Pendergast, 979 F.2d 1289, 1293 (8th Cir. 1992) (same). However, in this case, Mr.
Andis’s appeal waiver prevents this Court from reviewing the conditions of his
supervised release and determining whether the district court abused its discretion in
imposing those conditions.

       This result is consistent with a recent case from the Seventh Circuit, United
States v. Sines, 303 F.3d 793 (7th Cir. 2002), where that court addressed an almost
identical issue. Like Mr. Andis’s Agreement, Mr. Sines’s plea agreement contained
an appeal waiver. Mr. Sines pled guilty to bank fraud, but because of a prior
conviction for sexual exploitation of a minor, the district court also imposed
conditions of supervised release that included attendance at a sex-offender treatment

                                         -12-
program and periodic polygraph testing. The defendant appealed, claiming that he
had already completed an intensive sex-offender treatment program and that he had
not engaged in any illegal contact with a minor in over ten years. Therefore, he
argued, the conditions of his supervised release were not reasonably related to his
rehabilitation or to the protection of the public. The Seventh Circuit refused to
consider Mr. Sines’s arguments and held that the appeal waiver in the plea agreement
made the conditions of his supervised release unreviewable.

       Where a defendant, like Mr. Andis, does not claim that he failed to enter into
an appeal waiver knowingly and voluntarily, or that the supervised release conditions
constituted a miscarriage of justice because they were based on some constitutionally
impermissible factor, such as race, the conditions are not subject to review on appeal.
Accordingly, Mr. Andis’s appeal is dismissed.

MORRIS SHEPPARD ARNOLD, Circuit Judge, concurring, with whom LOKEN,8
Chief Judge, BOWMAN, and RILEY, Circuit Judges, join.

      There is a great deal in the court's opinion with which to agree. The court
observes, for instance, that the right to appeal is not a constitutional one and that
courts ought to treat plea agreements as contracts; these are propositions with which
I wholeheartedly concur. But, with respect, I think that the court abandons those
principles in deciding the case the way that it does.

       First of all, the court makes no attempt to justify its distinction between
sentences that violate the sentencing guidelines and sentences that are "illegal." A
sentence that violates a guideline is no less illegal in kind than a sentence that violates
a statute. Indeed, the guidelines are authorized by statute, and in any case a legal




      8
      The Honorable James B. Loken became Chief Judge of the United States Court
of Appeals for the Eighth Circuit on April 1, 2003.
                                       -13-
error with respect to a guideline is no less a legal error than a mistaken application
of statutory law.

        Nor is a guideline error necessarily different in degree from any other kind of
legal error. A mistaken application of the guidelines might, for instance, result in a
sentence that is too long by many years, while a sentence that exceeds the statutory
maximum might do so, say, by only one day. Yet the court holds that a defendant
may waive his right to appeal the one sentence and not the other. The distinction is
untenable, and the court makes no attempt to defend it. The court simply announces
a rule.

       Secondly, and more fundamentally, while the court professes loyalty to the idea
that ordinary principles of contract law ought to apply to plea agreements, it refuses
to adhere, again without explanation, to the most fundamental contract principle of
all, namely, that agreements supported by consideration ought to be enforced absent
fraud, duress, mistake, or some other disabling circumstance. It is certainly true that
courts have the right and duty to police pleas and plea agreements to ensure that
defendants make them knowingly and voluntarily. That is the function of the
inquiries set out in Fed. R. Crim. Proc. 11 and, especially, in Rule 11(b), (c), and (d).
Indeed, Rule 11(b)(1)(N) specifically requires the court to make sure that the
defendant understands "the terms of any plea-agreement provision waiving the right
to appeal or to collaterally attack the sentence," and, significantly, the rule
contemplates no restrictions whatever on a defendant's ability to waive appeal rights.
But once a court is convinced that a defendant is knowingly and voluntarily making
a waiver, I believe that its function is complete.

        Rule 11 is instructive in yet other ways. Under it, a defendant who pleads
guilty is made to understand the fundamental constitutional rights that he or she is
giving up, including the right to be represented by counsel at trial, the right to jury
trial, the right to cross-examine witnesses, the right not to incriminate oneself, and the
right to compel the attendance of witnesses. Yet the court holds without explanation
                                          -14-
that the right to appeal the court's sentence, a right that the due process clause does
not even guarantee, cannot always be waived in a solemn, public, and counseled
proceeding before a federal judicial officer. Contrary to what the court asserts,
Rule 11(c) does not give a district court "the authority to reject most plea
agreements." In fact, it gives the court the authority to reject only certain kinds of
agreements under very circumscribed circumstances, none of which is present here.

        Not only does the court lack the authority to restrict plea agreements in the way
that it seeks to, there are good reasons not to do so, not the least of which is that the
restriction works to the detriment of defendants. One of the few things that a criminal
defendant has to trade with his or her accuser is the right to appeal, and so the court,
far from improving the lot of criminal defendants with its interventionist rule, actually
deprives them of their property and the wherewithal with which to bargain. As is
often the case with paternalistic policies, moreover, there are other inefficiencies
created as well, including, as this case demonstrates, the judicial energy that must
now be devoted to deciding whether a sentence is a "miscarriage of justice" (or
"illegal") within the meaning of the distinction that the court draws here.
Furthermore, the utility of plea agreements is diminished by today's decision, because
courts will frequently be driven to decide the merits of an appeal to avoid being
entangled in the question of whether an "illegal sentence" is involved in an appeal
waiver, in much the same way that complicated procedural-default rules have
operated in the law of habeas corpus. As a result, the government's enthusiasm for
appeal waivers will wane, further reducing the opportunities of criminal defendants
to enter into advantageous bargains.

       The difficulty with applying the distinction that the court proposes is amply
demonstrated in the present circumstances. Mr. Andis claims that his sentence
violated a statute that requires that his conditions of supervised release be "reasonably
related" to certain "factors" and "reasonably necessary" to accomplish certain
objectives. See 18 U.S.C. § 3583(d). Is a sentence that does not conform to those
standards not "illegal"? If it is not, why isn't it? The court concludes that the appeal
                                            -15-
waiver prevents us from reviewing the conditions imposed, a result with which I
agree, but it doesn't tell us why this particular kind of assigned error is not reviewable
and others are. Evidently we are now put to the necessity of making a case-by-case
determination of whether a claim put forward by a defendant involves or does not
involve something called an "illegal sentence."

       One final observation. It is true that a criminal defendant will not be able to
foresee all of the errors that a district court might commit in the course of a
sentencing. But the law of contracts has never required that a risk be specifically
foreseeable before a court will enforce a party's assumption of that risk. In fact, one
of the principle purposes of a contract is to assign the risk of the unforeseen to one
party or another. To be sure, a plea agreement must be entered into knowingly and
with a knowledge of the consequences, but that only means, in the present context,
that a defendant must know that one of the consequences of his agreement is that he
or she will have no recourse to the court of appeals in the event of an error on the part
of the district court. There is no doubt that Mr. Andis knew that here.

      For the foregoing reasons, I would simply enforce the waiver.

BYE, Circuit Judge, concurring.

       I applaud Judge Morris Sheppard Arnold's doctrinal consistency. As a
practical matter, however, I doubt criminal defendants have the prescience and
bargaining power necessary to participate as full and equal players in the contractual
process Judge Arnold envisions. Applying pure contract theory in the plea bargain
context insufficiently accounts for the imbalance of power between prosecutors and
defendants. Nor does contract theory acceptably govern the disparate consequences
to the parties should they misjudge the risks. I am particularly troubled by the risk
of an egregious and unbounded sentencing decision that could not be foreseen even
by diligent counsel. Prior cases have therefore refused to endorse a purely contractual
analysis of plea bargains. Margalli-Olvera v. INS, 43 F.3d 345, 351 (8th Cir. 1995);
                                         -16-
United States v. Britt, 917 F.2d 353, 359 (8th Cir. 1990). In sum, I believe plea
agreements are sufficiently different from other contracts to demand greater flexibility
in their enforcement. For these reasons, I concur in the opinion of the court.

BRIGHT, Circuit Judge, concurring in part and dissenting in part, with whom
MCMILLIAN, Circuit Judge, joins.

       I concur in parts I and II of the majority's opinion in this case. The majority
opinion carefully and correctly reviews this circuit's law on the use of appeal waivers
in plea agreements. Crucially, the majority reaffirms the limits we have imposed on
use of those waivers, and provides for a miscarriage of justice exception. This
exception is critical for reasons explained by the First Circuit in United States v.
Teeter:

      We caution, however, that because such waivers are made before any
      manifestation of sentencing error emerges, appellate courts must remain
      free to grant relief from them in egregious cases. When all is said and
      done, such waivers are meant to bring finality to proceedings conducted
      in the ordinary course, not to leave acquiescent defendants totally
      exposed to future vagaries (however harsh, unfair, or unforeseeable).

257 F.3d 14, 23-24 (1st Cir. 2001); see also United States v. Khattak, 273 F.3d 557,
562 (3d. Cir. 2001) (declining to adopt a “blanket rule prohibiting all review” of
waivers of appeal given the possibility of “unusual circumstances where an error
amounting to a miscarriage of justice may invalidate the waiver”). The majority also
offers district courts some sound guidance for ensuring that defendants enter into plea
agreements and corresponding waivers knowingly and voluntarily.

      The concurring opinion authored by Judge Morris Sheppard Arnold raises
numerous carefully considered objections to the position of the majority. It is
notable, however, that no circuit has followed the blanket rule prohibiting all review
proposed by the concurrence. There is no doubt that reaching a clear and coherent
                                         -17-
definition of an illegal sentence poses difficulties, but it is not an impossibility. 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). Allowing an exception
for miscarriages of justice, an exception that is not allowed to swallow the rule, is the
most prudent course of action.

       Reaching the merits, I dissent from the majority opinion. The district court
exceeded its discretion by imposing conditions of release on Mr. Andis that do 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. See United
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)).

         The conditions of Mr. Andis' release were not fine tuned to his crime or his
individual situation. In fact, 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 that appear to have little or no
relationship to the defendant.9


      9
       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
                                          -18-
      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
determinations regarding the applicability of the special conditions of release.

       Mr. Andis' liberty interests may have been significantly curtailed without due
consideration by the district court. The conditions imposed on Mr. Andis may well
have been unreasonable and thus unauthorized by law. I would have remanded this
case to the district court for further proceedings relating to the conditions of release.

      A true copy.

             Attest:

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




and did not specify how any of the special conditions applied to Mr. Andis' crime or
individual characteristics.
                                       -19-
