Appeal-Waiver Exceptions Turn on the Guideline Range the Court Establishes—Not the Range the Defense Advocates

1. Introduction

Pedro Jose Silva Ochoa pleaded guilty in the Southern District of Florida to conspiracy to kidnap an internationally protected person, in violation of 18 U.S.C. § 1201(c). The district court imposed a sentence of 327 months’ imprisonment and a 3-year term of supervised release. On appeal, Silva Ochoa sought to challenge (i) the procedural reasonableness of the sentence—arguing the district court misapplied U.S.S.G. § 2A4.1(b)(5)—and (ii) the substantive reasonableness of the sentence under 18 U.S.C. § 3553(a).

The government did not engage the merits. Instead, it moved to dismiss the appeal, relying on a sentence-appeal waiver contained in Silva Ochoa’s plea agreement. The core issue in the Eleventh Circuit was therefore whether the waiver was valid (knowing and voluntary) and whether Silva Ochoa’s appellate claims fell within its scope.

2. Summary of the Opinion

The Eleventh Circuit granted the government’s motion to dismiss. Applying de novo review to the waiver’s validity and scope, the court held that:

• The waiver was knowing and voluntary because the magistrate judge specifically questioned Silva Ochoa about it during the plea colloquy and clearly explained the limited exceptions.
• Silva Ochoa’s attempted appellate challenges (guideline enhancement application and substantive reasonableness) fell squarely within the waiver’s broad coverage of “any sentence imposed.”
• No waiver exception applied because (i) the 327-month sentence did not exceed the statutory maximum (life), (ii) the sentence was within the guideline range the district court established (262–327 months), and (iii) the government did not appeal.
• Arguments that the waiver was “ambiguous” or that reserving the right to contest enhancements at sentencing preserved appellate review were rejected as inconsistent with the waiver’s text and the plea-colloquy explanations.

3. Analysis

3.1 Precedents Cited

King v. United States, 41 F.4th 1363 (11th Cir. 2022)

The court began with King for two propositions: (1) waiver validity and scope are reviewed de novo, and (2) the Eleventh Circuit recognizes narrow situations where a waiver may not be enforced (e.g., jurisdictional defects; sentences based on constitutionally impermissible factors such as race; possibly “extreme circumstances”; and sentences exceeding the statutory maximum). The panel cited King to show the governing framework and then concluded none of those exceptional circumstances existed here.

United States v. Bushert, 997 F.2d 1343 (11th Cir. 1993)

Bushert supplied the controlling test for enforceability: the government must show either (1) the district court specifically questioned the defendant about the waiver during the Rule 11 colloquy, or (2) it is manifestly clear the defendant otherwise understood the waiver’s full significance. The panel relied on Bushert to validate enforcement because the magistrate judge expressly explained the waiver and its exceptions (and the record reflected understanding).

United States v. Boyd, 975 F.3d 1185 (11th Cir. 2020)

Quoting Boyd, the court emphasized the “touchstone” for knowledge and voluntariness: whether it was clearly conveyed that the defendant was giving up the right to appeal “under most circumstances.” Boyd reinforced that the waiver inquiry is functional and communication-based, not merely formalistic. The magistrate judge’s plain-language recap—three exceptions only—satisfied that standard.

United States v. Bascomb, 451 F.3d 1292 (11th Cir. 2006)

Bascomb was cited for the Eleventh Circuit’s consistent practice of enforcing knowing and voluntary appeal waivers “according to their terms.” It supports the panel’s bottom line: once a valid waiver exists and no exception applies, dismissal is the ordinary result.

United States v. Grinard-Henry, 399 F.3d 1294 (11th Cir. 2005)

The panel cited Grinard-Henry for a hard-edged but important point: an appeal waiver forecloses review even of “difficult or debatable legal issues or even blatant error.” That citation directly undercuts the intuitive defense argument that serious guideline mistakes should remain appealable; under Eleventh Circuit doctrine, they are not—absent an express exception.

United States v. Medlock, 12 F.3d 185 (11th Cir. 1994)

Medlock provided a key evidentiary presumption: statements made during the plea colloquy are presumed true. This presumption strengthens waiver enforcement because defendants commonly attempt to recharacterize their understanding after sentencing. Here, Silva Ochoa’s sworn statements that the agreement was translated, reviewed, and understood were treated as reliable.

United States v. Hardman, 778 F.3d 896 (11th Cir. 2014)

Silva Ochoa argued ambiguity in the waiver (claiming it should allow appeal when the sentence exceeds the defense-advocated guideline range). Hardman supplied the interpretive method: plea agreements are construed like contracts, using ordinary meaning to effectuate the parties’ intent. Applying that approach, the panel read the waiver’s exception to refer to “the advisory guideline range that the [district c]ourt establishes at sentencing,” not any range urged by the defense.

United States v. Howle, 166 F.3d 1166 (11th Cir. 1999)

Howle was referenced (via King) for the notion that only extraordinary “extreme circumstances”—illustrated by the “public flogging” hypothetical—might justify disregarding an otherwise valid waiver. The panel invoked this to confirm that ordinary sentencing disputes (including guideline-enhancement arguments) do not qualify.

Thompson v. United States, 924 F.3d 1153 (11th Cir. 2019), abrogated in part on other grounds by United States v. Davis, 588 U.S. 445 (2019)

In a noteworthy footnote, the government pointed to a then-pending Supreme Court case (discussed below) addressing appeal-waiver limits. The panel responded with Thompson: a grant of certiorari does not change the law or provide a basis for relief; the Eleventh Circuit remains bound by its own precedent until overruled. The mention of Davis merely clarifies that Thompson was abrogated on other issues, not on the “certiorari grant does not change binding precedent” point used here.

United States v. Hunter, No. 24-20211, 2024 WL 5003582 (5th Cir. Dec. 6, 2024), cert. granted, No. 24-1063, 2025 WL 2885281 (2025)

The panel did not apply Hunter (a Fifth Circuit case) but acknowledged the Supreme Court had granted certiorari in a case “address[ing] the limits of appeal waivers agreed to as part of a guilty plea.” The court nevertheless enforced Eleventh Circuit doctrine, signaling that unless and until the Supreme Court changes the governing law, appeal waivers remain broadly enforceable in this circuit.

3.2 Legal Reasoning

(a) The waiver was knowing and voluntary

The opinion’s reasoning tracks the Bushert/Boyd template. The magistrate judge: (1) identified the waiver by referencing the specific plea-agreement paragraphs (15–17), (2) explained that Silva Ochoa was giving up the right to appeal “except under specific circumstances,” and (3) enumerated those exceptions in plain terms: government appeal, statutory-maximum exceedance, or upward departure/variance from the guideline range the court establishes. Silva Ochoa affirmed understanding and confirmed he had discussed the waiver with counsel. The magistrate judge then made an express finding that the waiver was knowing and voluntary, which the district court adopted without objection. Coupled with Medlock’s presumption of truthfulness for plea-colloquy statements, the record was sufficient to enforce.

(b) The scope covered Silva Ochoa’s claims

The waiver’s text was expansive: Silva Ochoa waived “all rights conferred by [28 U.S.C. § 1291] and [18 U.S.C. § 3742] to appeal any sentence imposed” and “the manner in which the sentence was imposed,” subject to enumerated exceptions. His appellate arguments—guideline-application error under U.S.S.G. § 2A4.1(b)(5) and substantive unreasonableness under 18 U.S.C. § 3553(a)—are quintessential “sentence imposed” challenges. Relying on Bascomb and Grinard-Henry, the panel enforced the waiver as written, even though the asserted error concerned guideline enhancements.

(c) No exception applied

The court methodically matched facts to the exceptions:

• Statutory maximum exception: The plea agreement warned that the maximum could be “any term of years or for life,” and the panel confirmed the kidnapping-conspiracy statute authorizes “any term of years or for life.” The 327-month term (and 3 years’ supervised release) did not exceed the statutory maximum (life imprisonment; up to 5 years’ supervised release for the Class A felony).
• Upward departure/variance exception: The district court established a guideline range of 262 to 327 months; the sentence was 327 months—within-range, not above-range—so it was not an upward departure or variance “from the advisory guideline range that the [district c]ourt establishes.”
• Government appeal exception: The government did not appeal.

(d) The “ambiguity” and “reservation of rights” arguments failed

Two defense reframings were rejected:

• Claimed ambiguity about exceeding the defense-advocated range: Applying Hardman, the panel held the relevant text ties the waiver exception to the range “the [district c]ourt establishes,” not the range the defense urged. This is an important interpretive point: “upward variance/departure” is measured against the court’s final range, not a litigant’s position.
• Reservation to oppose enhancements at sentencing: The plea agreement allowed Silva Ochoa to argue at sentencing that certain enhancements should not apply, but the panel held that this reservation did not override the appellate waiver. In other words, a right to contest issues in the sentencing proceeding is not the same as a preserved right to appeal those issues.

3.3 Impact

Although “NOT FOR PUBLICATION,” the opinion consolidates several practical lessons that will predictably shape plea bargaining and sentencing litigation in the Eleventh Circuit:

• “Court-established range” governs waiver exceptions: Defendants cannot manufacture an appeal right by asserting that the sentence exceeded what they argued the range should be; the benchmark is the guideline range the district court actually establishes.
• Reservations at sentencing do not imply reservations on appeal: Plea agreements often allow defendants to litigate guideline issues at sentencing while still waiving appeal. This decision reinforces that courts will enforce that division unless the agreement expressly preserves appellate review.
• Merits challenges are routinely unreachable if waiver applies: Procedural-reasonableness (guidelines) and substantive-reasonableness (§ 3553(a)) arguments are paradigmatic “sentence” appeals. Unless a listed exception is triggered, they will be dismissed—even if a defendant alleges serious error—consistent with Grinard-Henry.
• Certiorari grants do not soften circuit enforcement: By citing Thompson, the panel signaled institutional discipline: pending Supreme Court review (here, referenced through United States v. Hunter) does not change Eleventh Circuit waiver doctrine in the interim.

4. Complex Concepts Simplified

• Appeal waiver: A clause in a plea agreement where the defendant gives up (most) rights to appeal the conviction and/or sentence. If valid, it is enforced like a contract term.
• Knowing and voluntary: The waiver is enforceable only if the defendant understood what rights were being relinquished and chose to do so without coercion—typically confirmed during the Rule 11 plea colloquy.
• Rule 11 colloquy: The in-court plea hearing where the judge (or magistrate judge, with consent) ensures the plea is informed and voluntary and that key plea terms—like an appeal waiver—are understood.
• Procedural vs. substantive reasonableness: Procedural challenges attack the method (e.g., guideline calculation, enhancement application). Substantive challenges argue the sentence is too long (or short) in light of 18 U.S.C. § 3553(a).
• Guideline range “the court establishes”: The advisory sentencing range the judge calculates at sentencing after resolving objections. In this case: 262–327 months.
• Upward departure / upward variance: A sentence above the guideline range. A “departure” is a Guidelines-based move; a “variance” is a statutory (§ 3553(a)) move. Either way, the waiver exception discussed here triggers only when the sentence is above the judge-established range.
• Statutory maximum: The highest sentence Congress allows for the offense of conviction—here, life imprisonment under 18 U.S.C. § 1201 (and up to 5 years’ supervised release for a Class A felony).

5. Conclusion

The Eleventh Circuit dismissed Silva Ochoa’s sentencing appeal because his plea agreement contained a broad appellate waiver that was clearly explained during the plea colloquy and confirmed as knowing and voluntary. The opinion’s key doctrinal clarification is that an appeal-waiver exception for upward departures/variances is measured against the guideline range the district court establishes—not the range a defendant advocates. It also reinforces a common plea-agreement structure: a defendant may be permitted to contest enhancements at sentencing while still waiving the right to appeal the resulting guideline determinations and overall reasonableness, absent an explicit appellate carve-out.