[00:00:00] Speaker 04:
The United States Court of Appeals for the Ninth Circuit is now in session.

[00:00:13] Speaker 05:
Good morning and welcome to the James Browning Courthouse here in San Francisco.

[00:00:19] Speaker 05:
We're delighted to have you here.

[00:00:22] Speaker 05:
This is the time set for the case of United States of America versus Keith Atherton.

[00:00:29] Speaker 05:
If counsel's ready to proceed, you may please come forward.

[00:00:37] Speaker 08:
Thank you, your honor.

[00:00:38] Speaker 08:
May it please the court.

[00:00:40] Speaker 08:
My name is Elizabeth Daly.

[00:00:41] Speaker 08:
I'm here on behalf of the appellant, Keith Atherton.

[00:00:45] Speaker 08:
The Supreme Court in Garza versus Idaho recognized that no appeal waiver serves as an absolute bar because at least some appellate claims are unwaivable.

[00:00:56] Speaker 08:
In fact, every circuit but one recognizes that there is an exception to generally worded appeal waivers for certain fundamental errors.

[00:01:06] Speaker 08:
As I understand it, the government isn't seeking to eliminate that exception here.

[00:01:09] Speaker 08:
They don't dispute its validity or its existence.

[00:01:13] Speaker 10:
Can I ask a question?

[00:01:14] Speaker 10:
When you say they're unwaivable, they are waivable if it were expressly

[00:01:19] Speaker 10:
in the waiver agreement, it could be waived or even then we just wouldn't, we would not give any effect to that if they were written into it.

[00:01:28] Speaker 08:
This court hasn't reached the question of whether certain claims are unwaverable, and I don't think you need to today.

[00:01:33] Speaker 08:
The Supreme Court in Gaza also did not reach that question.

[00:01:38] Speaker 08:
What they were talking about as far as the unanimous circuit agreement was the types of claims where the appeal waiver is not knowingly and voluntarily entered, and rule 11 violations, government breach.

[00:01:51] Speaker 08:
But what

[00:01:53] Speaker 08:
every circuit but one also recognizes is that there is an exception for fundamental error.

[00:01:59] Speaker 08:
And I think the scope of that doctrine is what this court is called upon.

[00:02:04] Speaker 11:
We're in Garza, does the Supreme Court suggest that that might be the exception?

[00:02:08] Speaker 11:
I didn't see anything about fundamental error in Garza and the Garza footnote.

[00:02:12] Speaker 08:
They noted in a footnote that there is circuit recognition of this of miscarriage of justice.

[00:02:19] Speaker 11:
I mean, this looks like just clear error review that you're raising essentially things that would be factual mistakes reviewed for clear.

[00:02:29] Speaker 11:
How is this rise to the level of miscarriage of justice?

[00:02:32] Speaker 08:
Well, I think that the standard in every other circuit encompasses more than what you're, I think, referring to in miscarriage of justice and includes what the circuits would call significant and constitutional error.

[00:02:44] Speaker 08:
That's a first circuit quote.

[00:02:46] Speaker 08:
And so I think when you're saying miscarriage of justice, the concurrence of the circuits, I believe, include constitutional error of the sort raised here.

[00:03:00] Speaker 04:
making the same argument with respect to waivers as they apply to trial and waivers as they apply to sentencing?

[00:03:09] Speaker 04:
Or is sentencing different?

[00:03:11] Speaker 08:
No, Your Honor, sentencing is different.

[00:03:13] Speaker 04:
And I think that's... Well, you didn't make that distinction, but that's the distinction you're asking for.

[00:03:16] Speaker 08:
100%, that is the reason that circuits have treated appeal waivers for sentencing error very different.

[00:03:22] Speaker 08:
And they've generally articulated three rationales, and it's a consistent rationale for why sentencing waivers are different.

[00:03:29] Speaker 08:
One is the risk to the integrity of the courts, because it would undermine public confidence in the judicial system to leave an unconstitutional sentence in place and to require a defendant to serve more time in prison than the law allows.

[00:03:44] Speaker 10:
There's also the fact that appeal waivers counsel if we adopted that rule then everything is an exception basically to the appellate waiver because you're I mean then what the appellate waiver almost has no effect because you're you guys are very good as as as defense counsel at creating arguments for why the district court aired and under that theory as long as you can put it into a due process claim It's a constitutional error

[00:04:12] Speaker 10:
And then what are we doing?

[00:04:14] Speaker 10:
I mean, why are we even having appellate waivers?

[00:04:17] Speaker 08:
When the courts have discussed the reasons for caution in this area, they've said that it warrants procedural safeguards.

[00:04:24] Speaker 08:
And that's why we think that the court should reaffirm the Wells rule, because it does not prohibit the waiver of constitutional error.

[00:04:32] Speaker 08:
What it does is it creates a presumption

[00:04:34] Speaker 08:
that the parties did not intend to insulate a unconstitutional sentence from review unless they said so explicitly.

[00:04:43] Speaker 03:
Ms.

[00:04:43] Speaker 03:
Daley, so they could waive this right, under Wells, the right to this sort of due process violation.

[00:04:53] Speaker 03:
Any due process violation could be waived even if it's manifest injustice?

[00:04:57] Speaker 08:
Your Honor, I think that's an interesting question that's not presented here today.

[00:05:01] Speaker 03:
I think it's the next case, isn't it?

[00:05:03] Speaker 03:
Because the government is going to start putting this in all of its plea agreements.

[00:05:08] Speaker 03:
It's going to be bargained for.

[00:05:09] Speaker 03:
And so then we're going to start seeing due process questions that have been expressly waived and under Wells would be effective to waive appeal.

[00:05:17] Speaker 03:
And then we're going to be right back to asking this question.

[00:05:20] Speaker 03:
Is this an important enough or fundamental enough right that we should view the plea agreement as somehow illegal?

[00:05:27] Speaker 08:
And the way that's played out in other circuits that have the miscarriage of justice is that no claims are off the table.

[00:05:33] Speaker 08:
And in every case, they have to reach the merits, because they don't say that it has to be constitutional.

[00:05:38] Speaker 08:
They don't say that it has to be an illegal sentence.

[00:05:40] Speaker 08:
They provide essentially no standard, other than it has to be more than routine error.

[00:05:44] Speaker 10:
But then what does the appellate waiver do?

[00:05:46] Speaker 10:
Because, I mean, you waive the appeal, the whole idea is to give judicial efficiency, and then all these cases are still coming up to us anyway.

[00:05:57] Speaker 08:
I think we're talking about a very small number of cases.

[00:05:59] Speaker 08:
And I think the statistics in that will bear me out.

[00:06:02] Speaker 08:
But the reason why it's a small number of cases is because the vast majority of defendants who plead guilty do so for finality purposes.

[00:06:09] Speaker 08:
And they don't choose to go forward.

[00:06:12] Speaker 08:
In my cases with plea agreements, I don't recall a single defendant appealing.

[00:06:17] Speaker 08:
I generally get them from the panel.

[00:06:19] Speaker 04:
You said there were three reasons for treating sentencing differently.

[00:06:23] Speaker 04:
I think you gave us one so far.

[00:06:25] Speaker 08:
The integrity of the courts, the unequal bargaining power has been consistently recognized, where prosecutors hold all the cards.

[00:06:31] Speaker 08:
And as a matter of contract law, that risks unfairness.

[00:06:34] Speaker 04:
But that would go to the conviction as well.

[00:06:36] Speaker 04:
So why is sentencing different?

[00:06:39] Speaker 08:
Well, if there are disputes about the conviction itself, those can be hashed out at trial.

[00:06:44] Speaker 04:
But if there isn't a trial, and for example, we've had cases in which the law changes afterwards, and we nonetheless say, there's a waiver you can't

[00:06:55] Speaker 04:
change it.

[00:06:56] Speaker 08:
Go ahead.

[00:06:58] Speaker 08:
I think that goes to the third concern, which is knowing involuntary.

[00:07:02] Speaker 08:
And so in Goodall, this court I think explained it well in saying that the result of a guilty plea is known as respect to the trial waiver, because you know that the result is the imposition of a judgment of conviction for the offense you admitted to.

[00:07:17] Speaker 08:
But in the sentencing context, there's a much broader range of uncertainty.

[00:07:22] Speaker 08:
The error

[00:07:23] Speaker 08:
the results, the magnitude, and so you have this universe of possibilities, and the courts tasked in each individual case with knowing, did the defendant voluntarily waive that?

[00:07:33] Speaker 04:
Did they knowingly waive that?

[00:07:35] Speaker 04:
It's not, I mean, voluntary doesn't seem to me to capture it because, you know, there's no coercion or anything, but knowingly is the problem, which goes back to Brady in terms of you have to know the circumstances.

[00:07:49] Speaker 08:
I think that's correct.

[00:07:50] Speaker 08:
And the Second Circuit in La Jeunesse and the Fifth Circuit in Léal both articulated that rationale in stating that it's a question of whether the parties truly anticipated the risk of that error and intended it to be within the scope.

[00:08:04] Speaker 11:
But I thought you were contesting that the waiver here was knowing and voluntary.

[00:08:08] Speaker 08:
What I'm talking about is the procedural safeguards, and you're correct.

[00:08:11] Speaker 08:
There is no contention here that this waiver was knowing and voluntary, but it was entered under the backdrop of this circuit's precedent indicating that illegal sentences are accepted from a generic appeal waiver.

[00:08:25] Speaker 10:
And specifically this... Isn't that what this turns on, is our interpretation of illegal sentences, because Wells

[00:08:32] Speaker 10:
I mean, Wells has language that both the majority and the dissent below in the three-judge panel pulled apart to say, well, this is what illegal sentences means.

[00:08:43] Speaker 10:
Is that what we should be deciding?

[00:08:45] Speaker 10:
I mean, should we go back to Wells and say, look, we're just going to go back to the baseline of Wells and we're going to be more specific about what Wells meant?

[00:08:53] Speaker 10:
Is that how we should approach this case?

[00:08:55] Speaker 08:
Two sort of answers, the first answer being yes, that the question is what is an illegal sentence and the second part being you've already said it and there is 30 years of precedent from this court saying illegal sentence has a precise legal meaning, which is a sentence above the statutory maximum as well as a sentence that violates the Constitution and this court has never limited that to substantive constitutional error and the other courts... Well, maybe we should.

[00:09:21] Speaker 10:
What if we limited it to substantive constitutional...

[00:09:24] Speaker 10:
It would be really helpful if we had a limiting principle here.

[00:09:29] Speaker 10:
I'm interested in what you said about how not many cases would come up, because that's not my sense.

[00:09:35] Speaker 08:
I think we would be an outlier if we did that.

[00:09:36] Speaker 01:
I have a follow-up question to this that I've been wondering about.

[00:09:40] Speaker 01:
There's been some argument that there should be a distinction between a substantive challenge and a procedural challenge.

[00:09:49] Speaker 01:
Can't you hear me?

[00:09:52] Speaker 01:
Can you hear me now?

[00:09:54] Speaker 01:
If we were to allow procedural challenges, wouldn't there always be some room for saying that, yes, it was procedural error, but it was harmless?

[00:10:08] Speaker 08:
Your Honor, carving off procedural error, yes, that is correct.

[00:10:11] Speaker 01:
So what's the point of carving off, making a distinction between procedural versus substantive?

[00:10:18] Speaker 08:
There isn't one, and there isn't in any other circuit.

[00:10:21] Speaker 08:
So we would be an outlier if that was a distinction that we were creating.

[00:10:25] Speaker 08:
The other circuits have considered the miscarriage of justice standard to include both substantive and procedural constitutional error, as well as non-constitutional error.

[00:10:35] Speaker 08:
So they've looked at, for example, Sixth Amendment denials at sentencing.

[00:10:40] Speaker 08:
They've looked at Apprendi error at sentencing, ex post facto as constitutional claims that are procedural and apply regardless of an appeal waiver.

[00:10:48] Speaker 08:
And they've also, in la jeunesse, looked at denial of the right to allocution and concluded that that was a miscarriage of justice.

[00:10:54] Speaker 04:
Do you advocate limiting the Wells roll to constitutional violations?

[00:10:59] Speaker 08:
I believe that the Wells rule should be an illegal sentence, which is one that's above the statutory maximum or in violation of the Constitution.

[00:11:07] Speaker 04:
But not necessarily a violation of, say, the guidelines system or any other statutory issue.

[00:11:18] Speaker 08:
I think that that is what the rule is, and we're requesting that the court reaffirm.

[00:11:22] Speaker 04:
And what's the reason for that limitation?

[00:11:24] Speaker 08:
The reason for that limitation is, as Judge Nelson was indicating, that it creates a boundary so that it's not any routine garden variety error.

[00:11:35] Speaker 11:
The Constitution- This is routine garden variety error.

[00:11:38] Speaker 11:
I mean, this is just the judge got the facts wrong at sentencing, and that's garden variety factual error reviewed for clear error.

[00:11:47] Speaker 11:
how this becomes a constitutional claim.

[00:11:49] Speaker 11:
And if this is a constitutional claim, the doors are wide open.

[00:11:52] Speaker 11:
The waiver's meaningless.

[00:11:53] Speaker 11:
If this counts as constitutional.

[00:11:56] Speaker 08:
Your Honor, this was deemed a non-meritorious claim.

[00:11:59] Speaker 08:
So we did not raise constitutional error in this case.

[00:12:02] Speaker 08:
We weren't successful in raising it.

[00:12:04] Speaker 04:
And that's what the Court needs to look at.

[00:12:06] Speaker 04:
You did raise constitutional error.

[00:12:08] Speaker 08:
Yes.

[00:12:09] Speaker 04:
You lost, but that's a different question.

[00:12:10] Speaker 08:
Yes, this was a non-frivolous claim of constitutional error.

[00:12:13] Speaker 11:
In your view, every factual error could be recast as a due process violation, and so every clear error review now escapes the waiver.

[00:12:24] Speaker 11:
It swallows the whole rule.

[00:12:26] Speaker 08:
Your Honor, I understand that point.

[00:12:28] Speaker 08:
Going back to Judge Nelson's question, there are other limitations that we have a very small number of appeals that are really at issue here, because the attorney has to agree that there is a colorable claim of constitutional error, and they have to discuss with the defendant the very real risks if their claim is deemed in breach of the plea, then they have consequences.

[00:12:49] Speaker 08:
And so we're not talking about floodgates.

[00:12:51] Speaker 10:
Wait, wait, wait.

[00:12:51] Speaker 10:
What consequences are they?

[00:12:52] Speaker 10:
They lose.

[00:12:53] Speaker 08:
If there's a breach of the plea, then that plea is invalidated and the government isn't deemed to be bound by their promises.

[00:13:01] Speaker 10:
Can you play that out for me?

[00:13:02] Speaker 10:
I just don't have any history in this, but I've never seen a case, doesn't mean that one doesn't exist, where an appellate waiver, I mean we reject appellate waivers, or we enforce appellate waivers all the time.

[00:13:15] Speaker 10:
That doesn't mean that they're in violation

[00:13:17] Speaker 08:
There's usually a provision in the plea agreement that says, and it's up to the government to invoke it, but it says... And have they ever done that?

[00:13:23] Speaker 10:
Have you ever seen a case where they've invoked that for challenging something that was ultimately found to be within the appellate waiver?

[00:13:31] Speaker 08:
No, Your Honor, I haven't.

[00:13:32] Speaker 08:
But it is something that I generally advise my clients before going forward with an appeal that you need to consider this.

[00:13:38] Speaker 08:
And so it's my assessment as to whether the claim is colorable and then that additional warning that maybe you shouldn't go forward with this because you have a lot to lose.

[00:13:48] Speaker 08:
And that goes to whether there's a bargain for consideration.

[00:13:50] Speaker 04:
And in fact, I think in this instance, for example, we could have simply avoided the question of the waiver and decided

[00:14:01] Speaker 04:
maybe in a memorandum disposition that there was just no due process violation, and that would have been the end of it.

[00:14:10] Speaker 04:
In other words, it's not like this is a heavy lift in terms of low-level, non-meritorious cases.

[00:14:17] Speaker 08:
That's correct, Your Honor.

[00:14:18] Speaker 08:
And I think why Wells is clear and narrow as compared to the other circuits is that it allows the court to summarily dismiss claims that don't fall within its standard.

[00:14:29] Speaker 08:
And every other circuit that applies the miscarriage of justice, that standard is not right specific.

[00:14:36] Speaker 08:
It's not claim specific.

[00:14:38] Speaker 08:
It goes in each individual case

[00:14:41] Speaker 08:
fact specifically, and the court has to reach the merits to decide whether there's been a miscarriage of justice.

[00:14:48] Speaker 08:
And so, for example... Ms.

[00:14:50] Speaker 02:
Daley, may I ask you to go back to Judge Johnstone's question, because I'm not totally sure I understood your answer.

[00:14:55] Speaker 02:
If all the facts of this case were the same, and the claim you're making were the same, but the agreement had said, you know, waives the right to appeal on any grounds, including a due process error at sentencing, what would the result be?

[00:15:11] Speaker 08:
I think the answer is it depends.

[00:15:14] Speaker 08:
I know the court doesn't like to hear that answer.

[00:15:15] Speaker 08:
But I think the reason it depends is that the court, the reason we have this express rule is so that on review, the court can decide, was this intended by the parties to exclude this type of error?

[00:15:28] Speaker 08:
And so I think you need to look at it on the record and in the language of the agreement.

[00:15:33] Speaker 08:
And I think Pollard is the best example of how this works.

[00:15:36] Speaker 08:
Because in Pollard, it was related to restitution and forfeiture, and the defendant specifically waived an Eighth Amendment claim as to the imposition of restitution and forfeiture.

[00:15:46] Speaker 02:
In the example I gave, wouldn't it be... The example was, on any grounds, including a due process error at sentencing, you think it's... I don't understand why it's difficult to answer the question.

[00:16:01] Speaker 02:
Would that agreement specifically contemplate this type of claim?

[00:16:03] Speaker 08:
I think it would be more clear if it said, the parties agree that if there is a due process error at sentencing related to materially false information being considered by the courts, that is within the appellate waiver.

[00:16:17] Speaker 04:
Where does that exception come from?

[00:16:19] Speaker 04:
It was in Wells, but that's the first time I ever saw it.

[00:16:25] Speaker 04:
Where does that exception come from?

[00:16:26] Speaker 08:
The illegal sentence exception?

[00:16:28] Speaker 04:
No, no.

[00:16:29] Speaker 04:
The exception, the notion that it doesn't apply if you are more specific in the plea agreement.

[00:16:37] Speaker 08:
It is a limiting factor in Wells that wasn't previously present.

[00:16:41] Speaker 04:
It's in Wells, but where did it come from?

[00:16:42] Speaker 04:
And why doesn't it, as Judge Miller is suggesting, really amount to spinach in terms of how it would operate?

[00:16:52] Speaker 08:
I think it goes back to, and other circuits have articulated as, what did the parties anticipate?

[00:16:57] Speaker 08:
And did they anticipate that if this particular error and result occurred, then that was intended to be waived?

[00:17:03] Speaker 04:
Well, if that's the case, it would have to be extremely specific.

[00:17:07] Speaker 04:
It would have to be some kind of dispute that they knew was going to arise.

[00:17:12] Speaker 04:
For example, a dispute about whether X person is going to be allowed to have her testimony come in without appearing.

[00:17:18] Speaker 04:
If so, we waive any

[00:17:21] Speaker 04:
contention to that so-and-so has to actually appear at the sentencing.

[00:17:27] Speaker 04:
That would be one thing.

[00:17:28] Speaker 04:
But if it's at the level of due process, about 90% of these issues in one way or another are due process issues.

[00:17:38] Speaker 04:
And the reasons that you give for treating sentencing specially would apply to that kind of generality.

[00:17:48] Speaker 08:
I think that's something more than I waive my rights to appeal an unconstitutionally imposed sentence.

[00:17:57] Speaker 08:
And that was my concern with Judge Miller's example.

[00:18:00] Speaker 04:
It would seem that it has to be responsive to the concern that you can't anticipate what's going to happen.

[00:18:04] Speaker 04:
and sentencing before it does.

[00:18:05] Speaker 04:
So if you can anticipate it, because you know something's going to happen and you put it in, that's one thing.

[00:18:11] Speaker 04:
But if it's at a level where you really don't know what's going to happen and you're not anticipating anything in particular, I don't see how the exception comports with the reasons for having the doctrine to begin with.

[00:18:24] Speaker 08:
Well, I think at that level, number one, we're not anticipating that there will be errors of that magnitude, that a constitution is the floor.

[00:18:32] Speaker 08:
And when the parties are entering the agreement, that's correct.

[00:18:35] Speaker 08:
They're not anticipating that the court's going to make up facts.

[00:18:38] Speaker 08:
to justify the sentence, that the court's going to base its sentence based on pure allegation with nothing to show that it's reliable, which is the due process standard.

[00:18:49] Speaker 08:
Similarly, nobody expects that, you know, an attorney won't show up for sentencing, and the court will continue to proceed without the attorney.

[00:18:57] Speaker 08:
Some circuits have said that's OK, and some circuits have said, no, that's not OK, because that standard is very amorphous.

[00:19:05] Speaker 08:
I think it's much more moldable, and it's much easier to bring a garden variety error in under that amorphous miscarriage of justice standard than it is when you know that a constitutional violation, it was the floor, and the parties did not intend that to be part of a general appeal waiver.

[00:19:23] Speaker 02:
But once we take the premise, which

[00:19:26] Speaker 02:
I don't want to put words in your mouth, but I think you conceded that with the right wording, a person could waive this, or the parties could agree to waive this.

[00:19:37] Speaker 02:
Then the question is just, did the parties, both of whom are represented by counsel, understand that the language that they in fact adopted did waive this?

[00:19:49] Speaker 02:
And even if you think that on its own, any aspect of the conviction on any grounds isn't enough,

[00:19:56] Speaker 02:
If we were to hold that that would be enough, then everybody would know that that was the rule, and if you say any appeal on any grounds, that that covers anything.

[00:20:08] Speaker 02:
What is the problem with that?

[00:20:11] Speaker 02:
What is the problem?

[00:20:17] Speaker 02:
value is served by saying that you have to say something more specific than any aspect of the conviction and sentence on any grounds.

[00:20:26] Speaker 08:
I think what we're looking for is something that's right specific and ideally fact or context specific.

[00:20:33] Speaker 08:
I think that it raises significant concerns if the government can, as a matter of course, add whatever language into an appeal waiver and with their superior bargaining power, require it as a take it or leave it condition that every defendant attach the Bill of Rights and waive each of those rights.

[00:20:51] Speaker 03:
But Ms.

[00:20:51] Speaker 03:
Daley, if we take that out and have a safety valve that is unenforceable, we're actually taking a bargaining chip away from the defendant in terms of what's at the table.

[00:21:04] Speaker 03:
Right now, if they are able to negotiate over the conditions of sentence, and this may be a blanket waiver or maybe there's an implied term,

[00:21:14] Speaker 03:
But right now, the defendant is empowered to stand on their rights and seek, okay, well, I want an exception for, I don't want this to apply to any due process pieces.

[00:21:26] Speaker 03:
If we say that there's a safety valve so that that's never enforceable, and I still don't think I have any, I don't think you've answered kind of what is or what isn't enforceable.

[00:21:34] Speaker 03:
All we've done is disempower the defendant from having a chip to play in the bargaining process.

[00:21:39] Speaker 03:
They can't anymore offer the prosecutor.

[00:21:43] Speaker 03:
Yeah, you know, if the judge says something off in sentencing, I'm okay with that as long as you're going to suggest 10, not 15, right?

[00:21:52] Speaker 08:
I think all that's required is that the agreement make it clear that the parties intended to, that they anticipated a specific constitutional error and that they intended that there be no appeal.

[00:22:04] Speaker 03:
But I guess the problem with that is the waiver here is that the waiver here involves, I think, two of the three, it involves the two Wells factors that we've already said are illegal sentences, except for the waiver that you've raised.

[00:22:16] Speaker 03:
So why can't we read this to accept, to be in contemplation of, well, this deals with exceeds a statutory maximum, express.

[00:22:24] Speaker 03:
It deals with outside the guidelines, express.

[00:22:26] Speaker 03:
They just decided not to put something procedural about the sentencing in there.

[00:22:31] Speaker 03:
So it was bargained for.

[00:22:34] Speaker 08:
I'm clear.

[00:22:34] Speaker 08:
Are you asking me, does the appeal waiver in this case specifically waive constitutional rights?

[00:22:41] Speaker 03:
Right.

[00:22:41] Speaker 03:
If we were just to approach this as a contract, there are indications here that you've got this catch-all waiver.

[00:22:48] Speaker 03:
And then they've specifically called out the two other things that we look for in Wells for an illegal sentence.

[00:22:53] Speaker 03:
So why wouldn't we think that it was in contemplation already of any procedural defects with the sentencing?

[00:23:00] Speaker 08:
Well, I think that's a matter of contract interpretation in this instance.

[00:23:03] Speaker 08:
And when you look at the appeal waiver in this case versus the ones in Wells, Torres, Watson, they're virtually identical.

[00:23:10] Speaker 08:
They all carve off something, and then they say, and I waive my right to appeal on any other ground.

[00:23:16] Speaker 08:
And so that's the background.

[00:23:18] Speaker 08:
But also the concern about how specific it needs to be goes back to those three concerns.

[00:23:24] Speaker 08:
And when you're talking about having a broad appeal waiver that leaves any

[00:23:29] Speaker 08:
outcome at sentencing open, then you have potentially a take-it-or-leave-it condition.

[00:23:36] Speaker 08:
Your description of the bargaining was not my experience.

[00:23:39] Speaker 04:
Well, the outcome isn't really the issue.

[00:23:42] Speaker 04:
I mean, in the sense that there is an exception for an illegal outcome, and other than that, it seems fair to

[00:23:51] Speaker 04:
read the waiver as not applying to outcomes.

[00:23:54] Speaker 04:
But what it does apply to is some level of seriousness, let's say, of procedural error.

[00:24:00] Speaker 04:
I don't know how we articulate that.

[00:24:02] Speaker 04:
But for example, if there was a case about sentencing somebody in absentia, that's a due process violation.

[00:24:11] Speaker 04:
It's also a rule violation.

[00:24:13] Speaker 04:
But the notion that somebody was agreeing to be sentenced

[00:24:17] Speaker 04:
absentia seems a little far-fetched.

[00:24:20] Speaker 04:
But do you have to put in whether you meant to waive the right to not be sentenced in absentia, or which way does it run?

[00:24:28] Speaker 08:
it would have to show that the defendant entered that agreement with their eyes open, that they knew that this was a possibility and they intended that both parties intended that.

[00:24:36] Speaker 08:
And when you have a situation where the prosecutors have all the cards, because in the federal system, charges control sentences.

[00:24:43] Speaker 08:
And so often there isn't another option other than to take these conditions, take it or leave it.

[00:24:49] Speaker 08:
And the question of whether there's been bargain for consideration for that specific appeal waiver I think is one of the reasons why this court looks to a narrowing doctrine and all of the circuits.

[00:24:58] Speaker 08:
I mean, Ms.

[00:25:00] Speaker 03:
Daley, I guess why aren't defendants better off with a safety valve release of something like unconscionability, manifest injustice that's non-wavable, something that courts will always imply in?

[00:25:13] Speaker 03:
Your argument here is pushing for some sort of ability, under the Wells rule,

[00:25:18] Speaker 03:
can be given away at the stroke of a pen in the next plea agreement.

[00:25:22] Speaker 03:
Why don't you argue for a manifest injustice if you really want to get at things that are not and cannot be contemplated by a waiver?

[00:25:30] Speaker 03:
So it's outside of the contract framework of Wells.

[00:25:32] Speaker 08:
I wondered if that was a good position to take because reading the circuit case law from other circuits, it's much broader.

[00:25:38] Speaker 08:
But I think that if we're talking about bargaining, it's much clearer under the Wells rule because you know when you're entering the plea what you're waiving and what you're not waiving.

[00:25:47] Speaker 08:
And you know what your consequences are.

[00:25:49] Speaker 06:
Taking the position that we should just reaffirm.

[00:25:54] Speaker 06:
Yes, Your Honor.

[00:25:55] Speaker 06:
So, but there's a dispute as to what Wells means.

[00:25:57] Speaker 06:
I mean, that's why we're here, as to whether the constitutional error is in the sentence itself, the terms of the sentence as Wells said, or the process of getting there, here an alleged factual error.

[00:26:08] Speaker 06:
So how was Wells going to, I don't see how Wells answers the problem, because if it did, I don't think we'd all be sitting here having a non-bonk argument about it.

[00:26:16] Speaker 08:
Well, the en banc is about the Atherton opinion.

[00:26:19] Speaker 08:
The Wells, I think, is the rule that stays in existence today, and it's the rule that's been applying to fleet waivers.

[00:26:25] Speaker 06:
But what is the rule?

[00:26:25] Speaker 06:
Is the rule that it has to be an unconstitutional sentence, or that it can be an unconstitutional process of getting to the sentence?

[00:26:33] Speaker 08:
Before the Atherton opinion, there was never a distinction between procedural and substantive constitutional error.

[00:26:40] Speaker 08:
That was raised by the government for the first time in this case.

[00:26:43] Speaker 08:
And I don't think the court should adopt it.

[00:26:46] Speaker 08:
It's not a distinction.

[00:26:47] Speaker 04:
And in fact, there are a number of cases before Wells in which procedural error was considered to be constitutional error.

[00:26:52] Speaker 04:
Correct.

[00:26:52] Speaker 08:
And I think a fair reading, just as the panel in this case, the majority in this case decided, is that Wells includes procedural constitutional error.

[00:26:59] Speaker 08:
And that's consistent with the other circuits.

[00:27:03] Speaker 05:
Do you want to serve as a balance for your time?

[00:27:05] Speaker 08:
Yes.

[00:27:05] Speaker 08:
Thank you, Your Honor.

[00:27:21] Speaker 07:
May it please the Court, Suzanne Miles for the United States.

[00:27:26] Speaker 07:
The Wells rule that concentrates on the type of error is asking the wrong question.

[00:27:33] Speaker 07:
What the other circuits ask and what I think this court needs to set its rule in is not about the type of error that potentially occurred at sentencing when determining whether there is a carve out to an otherwise valid appellate waiver.

[00:27:45] Speaker 07:
It needs to be asking about the severity of the error.

[00:27:50] Speaker 07:
And that's really what the other circuits have done in adopting a miscarriage of justice standard.

[00:27:55] Speaker 04:
Well, they've used words like miscarriage of justice, but they seem to apply it to circumstances similar to those contemplated by Wells.

[00:28:04] Speaker 04:
Miscarriage of justice is- Except for the Eighth Circuit, which says that if you don't have a lawyer, that's OK, you waive that.

[00:28:10] Speaker 04:
What would your position be about that?

[00:28:13] Speaker 07:
The other circuits have narrowly defined miscarriage of justice.

[00:28:17] Speaker 07:
I disagree with Ms.

[00:28:18] Speaker 07:
Daley that they have adopted a broad and amorphous rule.

[00:28:22] Speaker 07:
A miscarriage of justice is an error that seriously, seriously affects the fairness, the integrity, and the public reputation of the judicial system.

[00:28:31] Speaker 07:
In the words of the Second Circuit, it is an error that has an overriding impact on the public interest.

[00:28:39] Speaker 04:
In the Fourth Circuit's words... So what about a trial in absentia?

[00:28:44] Speaker 07:
I think it would depend on the circumstances of whether if the waiver was knowing or not knowing.

[00:28:52] Speaker 07:
I know there's a circuit split on whether or not that would constitute manifest injustice.

[00:28:57] Speaker 05:
We would have to look at it.

[00:28:59] Speaker 07:
There are certainly a class of claims that the court would have to look at under this standard.

[00:29:05] Speaker 05:
In which ones wouldn't we have to look at?

[00:29:07] Speaker 07:
What you wouldn't have to look at are the garden variety claims.

[00:29:10] Speaker 05:
So define that for me.

[00:29:12] Speaker 05:
If somebody says maybe you think it's garden variety or all of us think it's garden variety but they claim that it's not a garden variety, wouldn't we still have to look at it?

[00:29:22] Speaker 07:
I don't think so, Your Honor, not in every single case.

[00:29:24] Speaker 07:
So the point of setting a high bar in terms of the severity of the error sets a standard that the defendant has to reach.

[00:29:35] Speaker 00:
And this is very similar to... How do you assess how severe it is without looking to some extent at the merits of the claim?

[00:29:44] Speaker 00:
I mean, at some point you're looking at

[00:29:47] Speaker 00:
the actual merits of the claim to assess whether, take for example the claim here, which is the argument that the judge based sentencing on facts for which there was no evidence or which there was false evidence.

[00:30:02] Speaker 00:
There's a version of that claim in which there was absolutely no evidence or completely fabricated evidence before the court, which in my mind would be severe.

[00:30:12] Speaker 00:
miscarriage of justice.

[00:30:14] Speaker 00:
And then there's a variation of that claim, which maybe could be arguably run in the mill, where when you actually dig into the record, eh, you know what?

[00:30:22] Speaker 00:
Actually, there is plenty of evidence there.

[00:30:24] Speaker 00:
And their allegation that it was false is, in fact, unfounded.

[00:30:30] Speaker 00:
So you've already conceded that you don't think we should just say this type of claim could never be not within the scope of the appeal waiver.

[00:30:43] Speaker 00:
then you're inviting us to actually look at the strength of the claim to determine whether the waiver applies.

[00:30:48] Speaker 00:
How is that actually different then from what the panel did here?

[00:30:52] Speaker 00:
I mean, it seems largely semantic to me to say, look at the merits of the claim to determine whether the waiver applies versus determine that the waiver doesn't apply to a constitutional claim but deny it on the merits.

[00:31:06] Speaker 07:
I don't think it's semantic at all, Your Honor.

[00:31:07] Speaker 07:
And I think your example exactly illustrates the balance that we want to try to reach.

[00:31:13] Speaker 07:
You're right.

[00:31:13] Speaker 07:
You can call due process.

[00:31:16] Speaker 07:
The scope of due process is not monolithic.

[00:31:19] Speaker 07:
To call a constitutional right monolithic is inherently a mistake, which is why we're in this situation now.

[00:31:27] Speaker 07:
You can call a mistake of fact, like the one here, the availability of sex offender treatment in Eugene, Oregon 15 years from now a due process violation.

[00:31:37] Speaker 07:
You can also see that a judge coming out and telling a defendant, I am sentencing you to 30 years instead of 10 because you're black and not white.

[00:31:47] Speaker 07:
That's also a due process violation.

[00:31:49] Speaker 07:
One of those is incredibly severe.

[00:31:51] Speaker 07:
and it undermines the public trust in the system.

[00:31:54] Speaker 07:
The other one is not, and it doesn't, which is why a question about assessing the severity and the nature of the claim is what this court should adopt so that what we're not doing is closing the door to serious due process violations that may pop up.

[00:32:10] Speaker 05:
Your Honor, I'm sorry.

[00:32:12] Speaker 05:
I interrupted you.

[00:32:12] Speaker 05:
No, that's OK.

[00:32:13] Speaker 05:
I'm interrupting you.

[00:32:15] Speaker 05:
In determining what's serious, in this case, it appears that the defendant said that he was sentenced because the judge relied on false information, I believe.

[00:32:27] Speaker 05:
At least that's one of the claims.

[00:32:29] Speaker 05:
And if he had been sentenced under false information and it affected, you know, it would have affected the sentence, correct?

[00:32:41] Speaker 07:
I'm not sure I understand the question.

[00:32:42] Speaker 05:
Would it have affected his sentence?

[00:32:44] Speaker 07:
It depends on how the judge articulated whether or not that she was relying on that information.

[00:32:50] Speaker 05:
Right.

[00:32:50] Speaker 05:
So we would have to look to see how serious it is.

[00:32:53] Speaker 07:
I'm not saying that that's not true.

[00:32:55] Speaker 07:
This idea about being able to disentangle the merits of the claim from the appellate waiver is simply a false hope.

[00:33:02] Speaker 07:
You can't.

[00:33:03] Speaker 07:
If the question is that this read-in exception to the appellate waiver

[00:33:10] Speaker 07:
is going to apply in order to catch the most serious constitutional, most serious public interest violations.

[00:33:19] Speaker 04:
For example, the whole notion that due process in sentencing includes material untrue reliance or reliance on material untrue statements traces back as I

[00:33:35] Speaker 04:
CH Townsend versus Burke in 1948.

[00:33:38] Speaker 04:
And the criminal defendant was sentenced on the basis of assumptions concerning his criminal record, which were materially untrue.

[00:33:47] Speaker 04:
Where does that fit in your scheme?

[00:33:48] Speaker 04:
And how do we know?

[00:33:49] Speaker 07:
Well, that's a Safferstein-type error.

[00:33:53] Speaker 07:
But Safferstein-type errors, like this due process error, also come in a variety of severity.

[00:33:58] Speaker 07:
And so a Tucker-type claim, which warranted, undermined the public trust because there was

[00:34:05] Speaker 07:
and severe error and I think it's akin to the Townsend error where there was a manifest demonstrated mistake about a fact that was material to the actual sentence was something that was deemed to be important enough that it undermines the public trust.

[00:34:23] Speaker 04:
So then where we are is in every instance we're looking at the merits in one guise or another of a due process claim based on falsity.

[00:34:30] Speaker 07:
That's inescapable, Your Honor.

[00:34:32] Speaker 04:
So you agree that's inescapable?

[00:34:34] Speaker 07:
I think it's inescapable, which is why, Your Honor, if I may, it's important to set a high threshold and demand that the defendant make a threshold showing before the case goes to a merits panel.

[00:34:45] Speaker 04:
Which is higher than the merits decision?

[00:34:48] Speaker 04:
In other words, there are instances in which, in fact, the person would prevail on the merits if they haven't waived this material falsity.

[00:34:58] Speaker 04:
because of the waiver they're not?

[00:35:00] Speaker 04:
Is there a category of reliance on material falsity which is bad enough to be a due process violation but not bad enough to undermine the waiver?

[00:35:16] Speaker 07:
I'm not sure I fully understand the question, Your Honor.

[00:35:18] Speaker 07:
Can I ask you just to repeat that one more time?

[00:35:22] Speaker 04:
Is there a category of judicial reliance on material falsity in sentencing?

[00:35:28] Speaker 04:
which would be a due process violation, but wouldn't undermine the waiver.

[00:35:33] Speaker 07:
If it rises to the level of a manifest injustice.

[00:35:36] Speaker 07:
And let me step back for a minute.

[00:35:38] Speaker 05:
But with you saying that, because it looks like several other circuits have adapted the manifest injustice, or miscarriage of justice exception, that does not list, as we do, the specific instances in which an otherwise valid appeal waiver

[00:35:57] Speaker 05:
cannot, will not be enforced, and they provide a list of factors that courts must consider in determining whether or not a sentencing error is serious enough, which is what you're telling us you think we would need to do, that the waiver should not be enforced.

[00:36:14] Speaker 05:
So should we

[00:36:16] Speaker 05:
go along with these other several circuits that follow this manifesto?

[00:36:22] Speaker 05:
Is that what you're advocating for?

[00:36:24] Speaker 07:
I am.

[00:36:24] Speaker 07:
Yes.

[00:36:25] Speaker 07:
I'm asking you to come in line with the majority of the sister circuits, the only one being the Fifth Circuit that has a much more draconian view of the appellate waivers.

[00:36:33] Speaker 07:
And in this circumstance... Hold on.

[00:36:35] Speaker 10:
If we adopt the manifesto in justice, then which maybe we should do, but

[00:36:41] Speaker 10:
Aren't the defense counsel going to just argue that this is manifestly unjust to rely on false facts?

[00:36:52] Speaker 07:
No, Your Honor, because those words don't have

[00:36:55] Speaker 07:
They don't lack meaning, nor do they lack experience.

[00:36:58] Speaker 07:
You use this standard.

[00:36:59] Speaker 11:
I want to go back to Judge Berzon's question, because I still, I don't think I understood the answer.

[00:37:04] Speaker 11:
Because it seemed to be that you were saying that false information at sentencing would rise to the level of a miscarriage of justice if it made a difference to the sentence.

[00:37:13] Speaker 11:
That just means that it's prejudicial error, and therefore every error, every claim of error

[00:37:20] Speaker 11:
factual error that is meritorious, is a miscarriage of justice, and comes in.

[00:37:25] Speaker 11:
So, if you're saying that that's not true, then there must be some cases in which a prejudicial error, a sentence, is wrong, materially wrong, and we let it go because of the waiver anyway.

[00:37:37] Speaker 11:
It's not a miscarriage of justice.

[00:37:39] Speaker 11:
How do we draw that line in response to Judge Bereson's question?

[00:37:43] Speaker 07:
Yes, this is a line drawing exercise.

[00:37:46] Speaker 07:
Absolutely.

[00:37:47] Speaker 07:
There are going to be errors that don't rise.

[00:37:49] Speaker 01:
Can you give us an example of one of those errors that affects the sentence that isn't a miscarriage of justice?

[00:37:57] Speaker 07:
Yes.

[00:37:57] Speaker 07:
Well, this is an example where we had what the defendant conceived to be an error.

[00:38:03] Speaker 07:
There's a number of cases.

[00:38:05] Speaker 04:
Yes, but we decided it wasn't.

[00:38:07] Speaker 01:
We decided it was not an error.

[00:38:09] Speaker 01:
That's the whole point.

[00:38:10] Speaker 01:
So can you give me an example?

[00:38:12] Speaker 01:
where a court said, oh, yes, they relied on, the judge said that you had 10 prior convictions, so he gave you the statutory maximum when you only had one prior conviction, but we're going to let that go?

[00:38:27] Speaker 07:
Yes, Your Honor.

[00:38:28] Speaker 07:
There are a number of cases that this court has looked at post Wells.

[00:38:32] Speaker 07:
that where it is essentially said that this, the claim that's being brought, even though it's being brought under a due process guide.

[00:38:38] Speaker 01:
That we're just back to prejudicial error.

[00:38:40] Speaker 07:
Not necessarily prejudicial, Your Honor, but the difference between substantive reasonableness and actual, or I'm sorry, and something that seriously affects.

[00:38:50] Speaker 01:
Well, you're just saying that it's not, if you're saying it's substantively reasonable, you're just, that's another way of saying it's not unreasonable, which is another way of saying it's not prejudicial.

[00:38:59] Speaker 01:
So it's just words.

[00:39:01] Speaker 01:
This is all just semantics that you're talking about, really.

[00:39:06] Speaker 07:
I think what we need to come back to are first principles.

[00:39:08] Speaker 07:
These are contracts.

[00:39:10] Speaker 07:
Plea agreements are contracts.

[00:39:11] Speaker 07:
The Supreme Court has said that over and over again.

[00:39:14] Speaker 07:
Appellate waivers so long.

[00:39:17] Speaker 10:
They can't be enforced as contract.

[00:39:19] Speaker 10:
I mean, well, theoretically they could.

[00:39:21] Speaker 10:
But I was looking for a judge who'd said that.

[00:39:23] Speaker 10:
And I can't tell that any judges said that they're just

[00:39:26] Speaker 10:
going to be interpreters.

[00:39:27] Speaker 10:
I don't even think that's your position, that they should just be straight up contract interpretation.

[00:39:31] Speaker 07:
No, but for the most part, what this court has said again and again, including in Wells, is that we generally follow contract law.

[00:39:38] Speaker 03:
I guess I'm puzzled why the government then is making an argument for a rule that it can't contract around.

[00:39:48] Speaker 03:
The Wells argument, your friend for the defendant,

[00:39:51] Speaker 03:
make in an argument rooted in contract.

[00:39:55] Speaker 03:
Maybe there's something that they can't contract around.

[00:39:58] Speaker 03:
But if under the panel opinion, as I understand it, the government can just put the term in the next contract and be done with it.

[00:40:10] Speaker 03:
No more issue.

[00:40:11] Speaker 07:
Your Honor, I am making a contract law argument because there's a public policy, a public policy doctrine in contract law that is a perfect corollary to the

[00:40:22] Speaker 07:
to the manifest injustice exception that we're talking about here.

[00:40:25] Speaker 07:
And basically, if I may, what the courts have said over and over again is a defendant is empowered to waive those rights that are personal to him.

[00:40:33] Speaker 04:
But how are you waiving rights?

[00:40:35] Speaker 04:
The problem here, of course, is that unlike the waiver of the trial, you have no idea what's going to happen in sentencing.

[00:40:44] Speaker 04:
So it seems to me, and I don't think Navarro is necessarily a precedent that's relevant here, and I can say why in a minute.

[00:40:54] Speaker 04:
This is all against a background of a waiver about something that hasn't happened yet, you don't know about, and you don't know what you're waiving.

[00:41:05] Speaker 04:
So one would think you would have to be very forgiving even on a contract theory with regard to holding somebody to that kind of waiver when constitutional rights are at stake.

[00:41:18] Speaker 07:
I think the Supreme Court's decision in Ruiz

[00:41:21] Speaker 07:
just doesn't bear that argument out.

[00:41:22] Speaker 07:
Anticipatory waivers are accepted, even if you don't know the full context.

[00:41:27] Speaker 04:
Ruiz's 1983 case, but there you were waiving a whole proceeding as you do with a trial.

[00:41:34] Speaker 04:
So it's not going to happen.

[00:41:35] Speaker 04:
So you're not going to have any things happen that you don't know about.

[00:41:38] Speaker 04:
But here it did happen, or it does happen.

[00:41:41] Speaker 04:
And if the judge decides that you can't have a lawyer at sentencing, as happened in an eighth circuit case,

[00:41:48] Speaker 04:
Does that something you're supposed to know that you waived in advance that that was going to happen?

[00:41:54] Speaker 04:
Of course not.

[00:41:56] Speaker 07:
What Ruiz demands is that a knowing waiver is one where you might not know the exact outcome, but you do know the general context.

[00:42:02] Speaker 04:
This isn't a question of outcomes.

[00:42:03] Speaker 04:
This is a question of procedures and a question of whether constitutional rights are being violated.

[00:42:09] Speaker 00:
Counsel, you have seeming to me already started from the get-go conceding that there is some exception for constitutional

[00:42:18] Speaker 00:
violations and illegal sentences, right, sentences above a statutory maximum.

[00:42:24] Speaker 00:
What I still haven't heard, and I think now several judges have asked this question, if there is a version of the claim here reliance on false information for sentencing that is prejudicial and could be so prejudicial that it

[00:42:47] Speaker 00:
Results in a what we'll call manifest injustice or miscarriage of justice How and then there's maybe a version of that claim that does not what did I think is your position?

[00:43:00] Speaker 00:
How do we draw the line?

[00:43:03] Speaker 00:
between the version for which the waiver is effective and the version for which the waiver is not effective, and how do we actually make that assessment?

[00:43:14] Speaker 00:
What do you envision happening when an offending comes on appeal and says, the judge in sentencing relied, my claim is that they violated my right to due process because they relied on false information when they sentenced me?

[00:43:29] Speaker 00:
How are we supposed to sort out the ones for which the waiver is

[00:43:32] Speaker 00:
type of waiver in this case, catch-all waiver is effective and not.

[00:43:37] Speaker 07:
I think that the mechanics go like this.

[00:43:39] Speaker 07:
The defendant files his brief, even though he has an appellate waiver.

[00:43:46] Speaker 07:
The government moves to dismiss based on that appellate waiver.

[00:43:49] Speaker 07:
And then it's incumbent upon the defendant to make a showing, a substantial showing, akin to Peña Rodriguez, akin to how this court

[00:43:58] Speaker 07:
works in certificates of appeal ability on habeas, akin to the kind of threshold showing that's required in Armstrong to show prosecutorial discretion, to meet some kind of threshold to make an actual showing based on his claim of the mistake and the record at sentencing, that there was an actual mistake upon which that was material, that the court demonstrably relied, those are the requirements under Safferstein's due process,

[00:44:28] Speaker 07:
and that rose to the level of one that affected the public trust and the public integrity of the judicial system.

[00:44:35] Speaker 07:
And how does this court draw that line?

[00:44:37] Speaker 07:
It can rely on the kinds of factors that have been articulated in the first circuit and adopted by all the other circuits, looking at the clarity of the error, the gravity of the error, the character of it, whether it was factual versus legal.

[00:44:52] Speaker 07:
Those are informative.

[00:44:54] Speaker 07:
And then it's also going to go to the case law.

[00:44:56] Speaker 07:
Remember again that miscarriage of justice is not a new phrase.

[00:45:00] Speaker 07:
This court relies on it in its plain error standard.

[00:45:03] Speaker 07:
It relies on it in many other contexts.

[00:45:05] Speaker 11:
But in the plain error context, we've generally said that the third and fourth factors are met if the error actually resulted in more prison time.

[00:45:16] Speaker 11:
So again, this all seems a long way of saying that basically any meritorious claim is going to meet the standard.

[00:45:24] Speaker 07:
And that's where I think it's useful to look at the contract corollary of this public policy right.

[00:45:30] Speaker 07:
And basically, again, to get back to what I was saying, what the court has held over and over again, this court and the Supreme Court, is that there are certain types of rights.

[00:45:38] Speaker 07:
Due process rights include a bundle of rights.

[00:45:41] Speaker 07:
The Constitution includes a bundle of rights.

[00:45:43] Speaker 07:
There are some errors, there are some rights that the defendant holds as his own and he can waive them.

[00:45:49] Speaker 07:
He can forfeit them, in which case this court reviews that for plain error.

[00:45:53] Speaker 07:
But there are certain things that are so severe, so extreme, that he can't bargain them away.

[00:45:59] Speaker 11:
Give me a concrete example.

[00:46:00] Speaker 07:
The Eighth Amendment's torture.

[00:46:01] Speaker 11:
Give me an actual example of a prejudicial error that resulted in more prison time that you would say is not a miscarriage of justice and the waiver would be enforced.

[00:46:09] Speaker 07:
That's not a miscarriage of justice?

[00:46:11] Speaker 07:
You'd like me to give you a hypothetical?

[00:46:13] Speaker 07:
I think we could take the hypothetical of, for example, the Tucker type error.

[00:46:17] Speaker 07:
where a defendant had five prior convictions, but instead of a Gideon error where he had no counsel at all, he simply says, well, I had ineffective assistance of counsel in some of those prior convictions.

[00:46:32] Speaker 07:
And there's a question about whether or not those prior convictions could be subject to habeas relief.

[00:46:42] Speaker 07:
So there's a question as to the veracity or the reliability of those prior convictions, and still that was relied on at sentencing.

[00:46:49] Speaker 07:
They're shakier than they otherwise would have been, unlike in Tucker where they were simply not valid at all.

[00:46:57] Speaker 07:
And so he was treated as a recidivist when he shouldn't have been.

[00:47:00] Speaker 02:
I think that is a difference of degree.

[00:47:03] Speaker 02:
the claim here.

[00:47:04] Speaker 02:
The panel found this claim not to be meritorious, but suppose that he was right that Judge Aiken was mistaken about the availability of sex offender treatment and that he would have gotten 24 months less, but for that, which side of the line would that claim fall on?

[00:47:23] Speaker 07:
I think if Judge Aiken had said flatly, I don't think that there is sex offender treatment that can make you safe in our community.

[00:47:30] Speaker 07:
If there was, I would release you after 15 years.

[00:47:33] Speaker 07:
But because I don't think that in 15 years we're going to have sex offender treatment that's going to adequately meet your needs, I am going to sentence you to 30 instead.

[00:47:43] Speaker 07:
I think we would have a much harder case in that perspective.

[00:47:47] Speaker 04:
Both on the merits and with regard to the waiver.

[00:47:50] Speaker 07:
Yes.

[00:47:51] Speaker 02:
But I thought that was the claim he was, essentially is the claim he's making.

[00:47:54] Speaker 07:
But this is a big problem with the rule that we have coming out of Atherton and coming out of Wells, is that all that the defendant needs to do is make a claim and not a showing.

[00:48:03] Speaker 07:
And that's a difference.

[00:48:04] Speaker 07:
So you were able to go back and look at the record and say, what is it that Judge Aiken actually did?

[00:48:08] Speaker 07:
Did she rely on this?

[00:48:10] Speaker 07:
Was it material?

[00:48:11] Speaker 07:
Was it a misstatement of fact?

[00:48:13] Speaker 07:
And did she rely on it?

[00:48:15] Speaker 07:
And a simple read of the record shows that she didn't.

[00:48:18] Speaker 07:
That case would have been removed.

[00:48:20] Speaker 07:
I'm sorry.

[00:48:20] Speaker 05:
I'm sorry to interrupt you, but it sounds like even the process that you laid out, the court would have to do essentially the same thing it did now in this case.

[00:48:33] Speaker 05:
I'm wrestling.

[00:48:34] Speaker 05:
I'm sympathetic.

[00:48:36] Speaker 05:
I understand you would like defendants to waive anything, kind of lessen your burden.

[00:48:44] Speaker 05:
But this is tricky and challenging.

[00:48:46] Speaker 05:
And especially from what I'm hearing in terms of judicial economy, it doesn't offer any less burden here for the court.

[00:48:57] Speaker 05:
And we would still have to look and see whether or not

[00:49:03] Speaker 05:
under what you outlined here, whether it was a substantial sewing and that it mattered.

[00:49:13] Speaker 05:
and was relied on.

[00:49:15] Speaker 05:
So can you help me with that?

[00:49:16] Speaker 05:
Yes.

[00:49:17] Speaker 07:
It's not judicial economy, though, that is the concern.

[00:49:20] Speaker 07:
The concern is whether the government is getting the benefit of its bargain in a plea agreement.

[00:49:25] Speaker 07:
And here, the government is not getting it.

[00:49:27] Speaker 07:
We have to still brief the merits of all of these cases.

[00:49:30] Speaker 01:
You're just saying you're going to... Excuse me.

[00:49:32] Speaker 06:
My question was the same as Chief Judge Marquias.

[00:49:36] Speaker 06:
What's the benefit to the government?

[00:49:37] Speaker 06:
You're saying it's...

[00:49:38] Speaker 06:
a false hope or a false dream that you don't have to look at the merits.

[00:49:41] Speaker 06:
You're just briefing and handling all these cases on the merits.

[00:49:44] Speaker 01:
Really what you're doing is just moving it to an earlier stage, but the same exact procedure and process would have to take place.

[00:49:54] Speaker 01:
You're just moving it to the motion to dismiss stage.

[00:49:58] Speaker 07:
Your Honor, I disagree that it's simply kicking the can forward.

[00:50:01] Speaker 01:
Excuse me, Counsel, but you just laid out a whole process where the appellate puts his appellate brief

[00:50:08] Speaker 01:
and then the government would make a motion to dismiss and then the appellant would have to put forth something else and then apparently you would probably have to respond to that showing on the mayor.

[00:50:21] Speaker 01:
Isn't that the exact same thing?

[00:50:25] Speaker 07:
No, Your Honor, not from the government's perspective.

[00:50:27] Speaker 07:
Because for the government, filing a motion to dismiss is not responding on the merits.

[00:50:32] Speaker 07:
It is asserting our appellate waiver.

[00:50:35] Speaker 04:
Why is this a motion to dismiss on any theory?

[00:50:37] Speaker 04:
Because we've held that it's not jurisdictional, the waiver.

[00:50:42] Speaker 04:
So whatever it is, it's not subject to a motion to dismiss.

[00:50:46] Speaker 04:
It's subject to a motion for some reaffirmance, maybe, but not to dismiss.

[00:50:52] Speaker 07:
then maybe it's a summary affirmance.

[00:50:53] Speaker 04:
I'm sorry if I've gotten my terminology wrong.

[00:50:55] Speaker 04:
You can do that on the Wells approach.

[00:50:57] Speaker 04:
In this case, you could have done that.

[00:50:59] Speaker 04:
You could have filed a motion for summary affirmance because there's nothing on the merits here.

[00:51:04] Speaker 04:
And then you can say it either way.

[00:51:05] Speaker 04:
And therefore, the waiver doesn't apply, or the waiver doesn't apply, but he loses on the merits.

[00:51:13] Speaker 04:
Either way, you can do it.

[00:51:15] Speaker 04:
If you have a frivolous or non-colorable claim, you're not going to be burdened with it.

[00:51:21] Speaker 07:
The standard under Wells, the test under Wells that was enforced in Atherton is just that the defendant has to state a constitutional claim, not a meritorious constitutional claim.

[00:51:31] Speaker 07:
He has to say that this is a due process claim.

[00:51:34] Speaker 07:
We saw that play out in Atherton.

[00:51:36] Speaker 04:
What happened is... Suppose you do it the other... Would your problems be solved if we said, first you have to show that it's a colorable claim?

[00:51:45] Speaker 04:
And then if it is, there is no waiver.

[00:51:49] Speaker 04:
Or even first you have to show that you went on the merits.

[00:51:52] Speaker 04:
And if you went on the merits, then there's no waiver.

[00:51:54] Speaker 04:
Would that solve your problem?

[00:51:56] Speaker 07:
I think that's what the miscarriage of justice essentially gets at.

[00:51:59] Speaker 07:
But it does set it as a higher standard than that.

[00:52:00] Speaker 04:
Is there any difference in the real world between those two?

[00:52:02] Speaker 07:
There is an absolutely real difference in the world between those two things.

[00:52:05] Speaker 07:
And if I can explain, I'm happy to do that.

[00:52:07] Speaker 06:
I want to ask you something else.

[00:52:10] Speaker 06:
Do you think there are any claims that a defendant cannot waive?

[00:52:14] Speaker 07:
I think that those that go to the public interest, the public integrity of the judicial system.

[00:52:20] Speaker 07:
This is a very narrow class of claims.

[00:52:23] Speaker 06:
We see that.

[00:52:24] Speaker 06:
So if the answer is yes, there are claims they cannot waive, then there are claims they can waive.

[00:52:31] Speaker 06:
And I think the line drawing problem here is if they can waive it, and it's a matter of interpretation, and they have, they've waived it.

[00:52:40] Speaker 06:
It doesn't the argument you're making about color bull manifesting justice doesn't seem to matter But I your honor if I may I think it does because what I'm talking about is this tiny class of claims?

[00:52:51] Speaker 07:
That is answering your question those that can't be waived those that go to the public trust in the system making sure that people are not sentenced to

[00:52:59] Speaker 07:
entirely on racism.

[00:53:01] Speaker 00:
It's a small class of claims that the other circuit...

[00:53:16] Speaker 07:
because racist sentencing is the most severe form of a due process claim.

[00:53:22] Speaker 04:
Yes, but you said a little while ago... That's why.

[00:53:24] Speaker 04:
You said a little while ago that if in fact this particular claim had been meritorious and prejudicial, if Judge Aiken had said that there were no... had specifically based her sentence on the fact that there were no

[00:53:41] Speaker 04:
Rehabilitation facilities and in fact there were you said that would be a problem and we'd have to look at the merits so At that point the lines wrong it seems not to be worth the candle anymore It is worth looking at the types of cases that are an analogy to this for example in Pena Rodriguez where the rule is we do not impeach jurors except

[00:54:08] Speaker 07:
if a defendant can make a showing of an overt racist statement by a juror and can show that the verdict was based on it.

[00:54:16] Speaker 07:
they can make an actual showing of those things as a threshold showing, then we cut through the otherwise complete rule against jury impeachment.

[00:54:26] Speaker 07:
This is the type of threshold showing I'm asking for.

[00:54:29] Speaker 11:
What's your response to counsel's argument that in judging the scope of the waiver and its knowing and voluntary character, we have to take into account that Wells was in the background on the books and informs the construction of that?

[00:54:43] Speaker 11:
What's your response to that?

[00:54:44] Speaker 07:
I think that there are a certain number of plea agreement contracts that were made when Wells was in play that were informed by the Wells rule.

[00:54:51] Speaker 07:
I'm asking this court to overturn the Wells rule.

[00:54:53] Speaker 11:
Will that invalidate this plea?

[00:54:56] Speaker 07:
I don't think it will invalidate this plea.

[00:54:58] Speaker 07:
I think it will invalidate the plea is coming forward after this court invalidates Wells.

[00:55:02] Speaker 11:
If Wells was on the books when this plea was entered and the defendant perhaps was advised by counsel well here's Wells and so don't worry about this waiver

[00:55:11] Speaker 07:
Which is why I don't think it invalidates this plea.

[00:55:14] Speaker 07:
I think he, Mr. Atherton, entered this plea with Wells being the controlling rule.

[00:55:20] Speaker 07:
And so I think he entered a plea with a very broad

[00:55:24] Speaker 11:
Exception to the otherwise strict appellate we invalidate that exception Why would that not then invalidate the knowing?

[00:55:32] Speaker 11:
Nature of the waiver because it was made on on a mistake of law perhaps.

[00:55:36] Speaker 07:
We're talking past each other I think that mr. Atherton's still gets the benefit of wells I think the cases after this that don't oh So you don't think the rule we would enunciate would even apply to this case?

[00:55:48] Speaker ?:
I

[00:55:49] Speaker 07:
I don't think, I think that he made his contract when Wells was the controlling law, but I think that- So you're bound by Wells for purposes of this case.

[00:55:56] Speaker 07:
I think we're bound by Wells for purposes of this case.

[00:55:58] Speaker 03:
Then Ms.

[00:55:58] Speaker 03:
Miles, why don't we wait for a case that actually shows a manifest injustice, which I don't think anyone is claiming here, whichever step we do the analysis at.

[00:56:06] Speaker 07:
But as we are now, what we have, I know that the statement has been that we can file a motion to dismiss in any case under the current rule.

[00:56:15] Speaker 07:
All the defendant has to do is say due process, in which case we get past the motion to dismiss phase or the motion for summary affirmance phase.

[00:56:23] Speaker 07:
There is no requirement for a threshold showing and we have to file on the merits.

[00:56:28] Speaker 04:
Excuse me, but we don't.

[00:56:30] Speaker 04:
But you're going to have to file on the merits.

[00:56:32] Speaker 04:
On your construct, you're going to have to file on the merits.

[00:56:35] Speaker 04:
anyway, either at the front end or the back end.

[00:56:39] Speaker 04:
Well, you said that whether there's a manifest injustice depends on the particular circumstances and whether it's a big due process violation or a little due process violation.

[00:56:50] Speaker 04:
Your Honor, should be clear.

[00:56:51] Speaker 04:
Or actually, more than that said, you couldn't come up with an example in which there was a due process violation, but the waiver still holds.

[00:57:01] Speaker 04:
So it seems like the two pieces collapse onto each other, and you're always going to have to

[00:57:05] Speaker 04:
Discuss the merits.

[00:57:07] Speaker 07:
I disagree your honor if it should be clear from the face of the sentencing Whether this meets the manifest injustice standard.

[00:57:15] Speaker 07:
Is this one of the most unusual types of?

[00:57:17] Speaker 00:
Mistakes what is a type of?

[00:57:20] Speaker 00:
constitutional error That is actually prejudicial as Judge Collins said actually results for example in more prison time that you think

[00:57:32] Speaker 00:
the appellate waiver catch-all would be effective against.

[00:57:35] Speaker 00:
Can you give me a specific example of something that actually violates the Constitution and causes prejudice to the defendant, but you would say has been waived?

[00:57:47] Speaker 00:
Yes.

[00:57:47] Speaker 07:
I think that there is any number of factual mistakes that would qualify as a Safferstein-type due process violation, that the court could look and say that I think that you, for example in this case,

[00:58:00] Speaker 07:
I believe that you raped this child more times than you actually videotaped.

[00:58:06] Speaker 07:
At the same time, that's not necessarily making... Your conduct is so egregious as it is that even if you had raped this child more times than what you recorded,

[00:58:18] Speaker 07:
I am still sentencing you to as much time as I possibly can, which is the third year in prison.

[00:58:26] Speaker 00:
But then you're making it non-projudicial, right?

[00:58:28] Speaker 00:
What if the judge had actually said, if you only rape the child two times, I would sentence you to 10 years.

[00:58:39] Speaker 00:
But since I believe you raped the child more times, I'm sentencing you to 30 years.

[00:58:46] Speaker 07:
Your honor, I have to admit that I think that if what the judge says is based on a factual error, a clear factual mistake, I am sentencing you to more time than I otherwise would sentence you to, that case should go to a merits panel.

[00:59:01] Speaker 07:
And that should be reviewed.

[00:59:02] Speaker 07:
And the appellate waiver catch-all here would not waive that claim.

[00:59:07] Speaker 07:
I think if the defendant makes that threshold showing, and you can see that based on the face of the sentencing record,

[00:59:12] Speaker 07:
then yes, you should send that to a merits panel and the government should brief it.

[00:59:17] Speaker 11:
But your honor, right now we have no way of filtering out the unmeritorious from the meritorious.

[00:59:33] Speaker 11:
that doesn't demand- You completely collapse them because you've conceded that any meritorious claim would not be waived and only the non-meritorious are waived, so it's just all the merits.

[00:59:42] Speaker 07:
Your Honor, I just don't agree.

[00:59:44] Speaker 11:
I think that this- But you can ask three times to give an example of a prejudicial error that rises to a due process violation, materially affects the sentence, but would still be waived, and you haven't identified one.

[00:59:57] Speaker 11:
You've conceded that the ones that exist do go to a merits panel.

[01:00:01] Speaker 07:
Your honor, I'm over my time, but there is one point that I would like to make.

[01:00:04] Speaker 07:
Even if that is true, even if it is true that the meritorious claims should go to a merits panel, there is, I would say, 90 to 95 percent of the cases that are unmeritorious and can't be sustained on the claim record.

[01:00:17] Speaker 04:
File a motion for summary affirmance on the merits.

[01:00:20] Speaker 07:
Because right now, all the defendant needs to do is say that it's a due process claim, and then the government has to brief it.

[01:00:27] Speaker 07:
If the defendant says it's a due process claim and then needs to show that due process claim, that due process error on the plain record,

[01:00:37] Speaker 07:
of the sentencing before the government then needs to come in in the handful, the tip of the iceberg cases that would require review on the merits, then the government has gotten the benefit of its burden in these appellate waivers in 90 to 95 percent of the cases.

[01:00:53] Speaker 07:
And that is a significant, first of all, it's in line with all of the other circuits.

[01:00:58] Speaker 07:
It's in line with this circuit's treatment of plea agreements in general.

[01:01:02] Speaker 07:
And it's in line with the benefit of the bargain that the government is getting by entering these plea agreements to begin with.

[01:01:07] Speaker 07:
And that's what we're asking this court to do, is to set a high bar that requires a threshold showing that this is a severe enough error, that it merits all of the parties doing the work and bringing it to the court for review as opposed to dismissal.

[01:01:20] Speaker 10:
I agree with what you just said there, but that seems very inconsistent with the prior 30 minutes of your argument.

[01:01:26] Speaker 05:
Ms.

[01:01:26] Speaker 05:
Miles, I know you're well over time.

[01:01:29] Speaker 05:
I just, if I can ask one last question because I want to make sure I understand.

[01:01:35] Speaker 05:
You're advocating for what you just said, but I'm trying to figure out what that would mean in terms of a opinion.

[01:01:42] Speaker 05:
So are you saying Biblur plus a catch-all miscarriage of justice exception?

[01:01:50] Speaker 05:
Or are you just saying miscarriage of justice exception?

[01:01:53] Speaker 07:
Just miscarriage of justice.

[01:01:54] Speaker 05:
So Biblur, which says you can't have an unconstitutional sentence, you're not advocating for that?

[01:02:02] Speaker 07:
No.

[01:02:03] Speaker 07:
didn't raise that question to begin with.

[01:02:05] Speaker 07:
So that rule popped up in Bibler out of Rule 35, and then has been carried forward in this regard in a way that just doesn't make sense in these cases.

[01:02:15] Speaker 05:
Well, thank you.

[01:02:15] Speaker 05:
I know you struggled.

[01:02:17] Speaker 05:
I think these are difficult questions in trying to find an answer.

[01:02:20] Speaker 05:
I think that's why we're here.

[01:02:21] Speaker 05:
But thank you very much.

[01:02:23] Speaker 05:
Appreciate your argument.

[01:02:24] Speaker 05:
Thank you, Your Honor.

[01:02:35] Speaker 08:
The Wells rule allows defendants to bargain so that they are agreeing not to appeal a constitutional right.

[01:02:46] Speaker 08:
And that's what makes it different from the way these types of exceptions have played out in other circuits.

[01:02:52] Speaker 08:
And that's why the rule that we have that's been on the books for approximately 30 years is clear and narrow and should be affirmed.

[01:02:59] Speaker 03:
Ms.

[01:03:00] Speaker 03:
Daley, the defendant here could have, if it were a meritorious claim in the end, the defendant could have waived it by saying due process with respect to reliance on incorrect factual information.

[01:03:10] Speaker 04:
I agree.

[01:03:11] Speaker 04:
Do you actually agree with that?

[01:03:14] Speaker 04:
If you agree with that, then how does the underlying problem of not being able to project forward into the future of something that you don't know about play out?

[01:03:24] Speaker 04:
It seems to me, as I said before, that there may be very specific circumstances in which there are anticipated disputes about sentencing.

[01:03:35] Speaker 04:
that could be waived.

[01:03:36] Speaker 04:
But any level of generality with respect to something that isn't anticipated, why are you accepting the exception?

[01:03:43] Speaker 04:
And how does that not undermine the entire enterprise here?

[01:03:46] Speaker 08:
Well, I think that there's a difference between deciding that an issue is reviewable regardless of an appeal waiver versus what Wells does, which is tell the court how to interpret an appeals waiver.

[01:03:58] Speaker 08:
And what we're talking about is how to interpret an appeals waiver.

[01:04:01] Speaker 08:
And Wells tells us that when you waive a constitutional error, then you can do so as long as it's expressed.

[01:04:09] Speaker 04:
Exception came from nowhere.

[01:04:10] Speaker 04:
I mean, that's why I asked you the question before.

[01:04:12] Speaker 04:
Well said it, but it's not anywhere else.

[01:04:15] Speaker 04:
And it seems inconsistent with the basic enterprise here.

[01:04:19] Speaker 04:
It was a basic understanding of what we're doing.

[01:04:21] Speaker 08:
I don't believe it came out of nowhere.

[01:04:22] Speaker 08:
I believe it came out of the doctrines that the circuits have consistently articulated.

[01:04:27] Speaker 08:
So for example, the Second Circuit said, we will certainly often be willing to set aside the waiver when constitutional rights are concerned.

[01:04:34] Speaker 08:
And the Fifth Circuit in Lyall said,

[01:04:36] Speaker 04:
were going to believe that the parties anticipated that the sentence would be constitutional and didn't intend to... Well, that's all true, and that's why I'm questioning why you're agreeing that that all changes if you're saying, but we're waiving due process issues with regard to the findings of facts.

[01:04:52] Speaker 08:
It changes how you interpret the appeal waiver.

[01:04:55] Speaker 08:
Whether there are certain claims that are unwaverable is a different question because of the contract principles of formation and intent.

[01:05:04] Speaker 04:
The public defender's brief, Mika's brief here, takes the position that that should not be true.

[01:05:10] Speaker 04:
Is that right?

[01:05:11] Speaker 08:
They do, yes.

[01:05:12] Speaker 08:
The constitutional sentencing error is never subject to waiver.

[01:05:15] Speaker 08:
And I don't think the court needs to reach that question when you're just, the vast majority of cases that are going to come to you are going to come to you with an interpretation question, not is this unwaverable.

[01:05:26] Speaker 08:
And that avoids reaching the merits if you're looking at what did the parties here contract for.

[01:05:31] Speaker 05:
So I want to ask you the same question.

[01:05:34] Speaker 05:
So what is, are you saying bibler, we should still keep bibler?

[01:05:40] Speaker 05:
I, yes.

[01:05:41] Speaker 05:
And Wells?

[01:05:42] Speaker 05:
Yes.

[01:05:44] Speaker 05:
And not look at the others, what the other circuits, the majority of the other circuits are doing regarding miscarriage of justice factors.

[01:05:51] Speaker 08:
I believe, well, this court has said that an illegal sentence is a miscarriage of justice.

[01:05:56] Speaker 08:
It's a defined type, and Wells says that we won't interpret an appeal waiver to include an illegal sentence unless the parties have contracted for that.

[01:06:06] Speaker 08:
That's part of the voluntary and knowing, the intent of the contract, as opposed to what the government was focusing on, which is the public interest.

[01:06:14] Speaker 04:
So in other words, could the party's contract for an actually illegal sentence, that is, a specifically, substantively illegal sentence, i.e.

[01:06:22] Speaker 04:
a sentence of more than the statutory maximum?

[01:06:28] Speaker 08:
I think it's possible.

[01:06:30] Speaker 08:
I could envision, for example, in the wake,

[01:06:35] Speaker 08:
Lead up to Apprendi or Booker.

[01:06:38] Speaker 08:
The party's saying, hey, we know this issue is before the Supreme Court.

[01:06:41] Speaker 08:
We're agreeing that the defendant in this case should be sentenced to 12 years.

[01:06:47] Speaker 08:
Post Booker, it might be that the court could go down to 10.

[01:06:50] Speaker 04:
But that's different.

[01:06:51] Speaker 04:
The government could seek up to 15.

[01:06:52] Speaker 04:
That's not a sentence about the statutory maximum.

[01:06:54] Speaker 04:
It's still a procedural question.

[01:06:55] Speaker 04:
How are we going to decide?

[01:06:56] Speaker 08:
Well, it would be about the statutory maximum if the guidelines were below that and the guidelines were treated as mandatory.

[01:07:02] Speaker 08:
So an Apprendi error, that's a statutory maximum claim.

[01:07:05] Speaker 08:
And so I can see if the parties, or for example, if the parties agreed to an above statutory maximum sentence to set aside state charges that they knew were pending, that could be a situation where the court knows that that was what the parties intended and the result doesn't.

[01:07:19] Speaker 08:
But that's a rare situation.

[01:07:21] Speaker 04:
But isn't it beyond judicial competence or the position, judicial authority to sentence somebody illegally?

[01:07:28] Speaker 04:
And is it also,

[01:07:31] Speaker 04:
in some circumstances beyond judicial authority to use unconstitutional procedures, i.e.

[01:07:39] Speaker 04:
you can't have a lawyer at sentencing.

[01:07:41] Speaker 04:
Supposedly he says, you can't have a lawyer at the sentencing.

[01:07:44] Speaker 04:
Can he waive that?

[01:07:45] Speaker 04:
Can he put it in his plea agreement?

[01:07:49] Speaker 04:
I'm not going to challenge the denial of a lawyer at sentencing?

[01:07:55] Speaker 04:
And it would be enforceable?

[01:07:57] Speaker 08:
Constitutional error is, I mean, I think constitutional means serious.

[01:08:00] Speaker 08:
It's a shorthand for this is a serious error, this is a severe error.

[01:08:04] Speaker 08:
Whether you can ever

[01:08:07] Speaker 08:
contract against that.

[01:08:08] Speaker 08:
I don't think any circuit has decided, and I don't think this court has to be the first.

[01:08:13] Speaker 08:
Certainly in Crespin v. Ryan, we indicated that we had concerns about that there is some boundary, but I don't think this case raises that boundary.

[01:08:21] Speaker 06:
But what is your question, I mean your answer to the question of whether there are claims that a defendant cannot waive?

[01:08:29] Speaker 06:
Are there any claims that a defendant cannot waive no matter how we interpret the appeal?

[01:08:34] Speaker 08:
what this court should do versus what the courts have said so far.

[01:08:39] Speaker 08:
So far, they've said that you can't waive claims that relate to the knowing and voluntariness of the appeal.

[01:08:45] Speaker 08:
So those are the types of claims that you can't waive.

[01:08:47] Speaker 06:
But what is your answer?

[01:08:48] Speaker 06:
Are you saying that if it's above the statutory maximum, you can waive that?

[01:08:54] Speaker 08:
I think if the court were presented with it, then a substantive constitutional error would likely be something that the defendant can't waive.

[01:09:01] Speaker 08:
That is not the question presented here.

[01:09:05] Speaker 05:
Thank you very much.

[01:09:06] Speaker 05:
I'd like to appreciate your argument presentation to acknowledge and appreciate both you and Ms.

[01:09:15] Speaker 05:
Miles, Ms.

[01:09:16] Speaker 05:
Daly.

[01:09:16] Speaker 05:
Thank you very much.

[01:09:18] Speaker 05:
The case of United States of America versus Keith Atherton is now submitted and we are adjourned.

[01:09:24] Speaker 05:
Thank you.