Appeal Waivers Survive Sentencing “Right to Appeal” Advisements; Only an “Obvious, Egregious” Miscarriage of Justice Defeats Enforcement (Applying Hunter)

1. Introduction

In United States v. Justin Demon Lowery (11th Cir. July 7, 2026) (per curiam) (not for publication), the Eleventh Circuit enforced a plea-agreement sentence-appeal waiver and dismissed an appeal alleging a sentencing due-process violation. The defendant, Justin Demon Lowery, pleaded guilty in the Middle District of Florida to drug-trafficking offenses involving methamphetamine and fentanyl and received a below-guidelines sentence of 220 months.

The key appellate issue was not the merits of Lowery’s due-process claim, but whether his sentence-appeal waiver barred the appeal—especially where the district court, at sentencing, stated that Lowery had “14 days to appeal” (qualified once by “to the extent permitted by your plea agreement”). While the case was pending, the Supreme Court decided Hunter v. United States, resolving a circuit split about whether such sentencing advisements can negate an otherwise valid waiver.

2. Summary of the Opinion

The Eleventh Circuit granted the government’s motion to dismiss. It held:

• Lowery’s appeal waiver was knowing and voluntary and therefore enforceable.
• The district court’s sentencing comments about an ability to appeal did not negate the waiver, under Hunter v. United States and existing Eleventh Circuit precedent.
• Lowery did not invoke, and in any event did not satisfy, the “miscarriage of justice” exception recognized in Hunter.

3. Analysis

3.1. Precedents Cited

Hunter v. United States, 608 U.S. __, 2026 WL 1751815 (June 18, 2026)

Hunter is the opinion’s centerpiece. The Eleventh Circuit treated it as controlling intervening authority that:

• Rejects the argument that a district court’s statement at sentencing that the defendant has a right to appeal can negate an otherwise knowing and voluntary appeal waiver, even if the government fails to object.
• Recognizes a narrow safety valve: an appeal waiver is unenforceable if enforcement “would result in a miscarriage of justice.”
• Sets an exceptionally stringent standard: only an obvious, egregious error—“not one a judge could reasonably make”—that would bring the judicial system into disrepute.

The Lowery panel applied Hunter in two moves: (1) the sentencing advisement did not undo the waiver; and (2) Lowery’s claim did not approach Hunter’s “high bar.”

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

Bascomb supplied the Eleventh Circuit’s pre-Hunter rule: a sentence-appeal waiver “cannot be vitiated or altered by comments the court makes during sentencing.” Lowery conceded his sentencing-advisement theory conflicted with Bascomb. After Hunter, the panel reaffirmed Bascomb as consistent with the Supreme Court’s view.

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

Bushert provides the Eleventh Circuit’s foundational test for enforceability: appeal waivers are enforced if made knowingly and voluntarily. The government can establish that by showing either:

1. the district court specifically questioned the defendant about the waiver during the plea colloquy, or
2. the record otherwise shows the defendant understood the waiver’s full significance.

In Lowery’s case, the magistrate judge reviewed the waiver and exceptions during the change-of-plea hearing and Lowery confirmed understanding—meeting Bushert.

United States v. Johnson, 541 F.3d 1064 (11th Cir. 2008)

Johnson is cited for the standard of review: the validity of a sentence-appeal waiver is reviewed de novo. That matters because waiver enforceability is treated as a legal question suitable for threshold resolution—here via a motion to dismiss.

United States v. Weaver, 275 F.3d 1320 (11th Cir. 2001)

Weaver reinforces that an appeal waiver is enforceable when referenced in the plea colloquy and the defendant agrees to it freely and voluntarily. The Lowery panel used Weaver to underscore the routine enforceability of waivers where the plea colloquy is adequate.

Chaney v. United States, No. 24-6543, 2026 WL 855041 (U.S. June 29, 2026)

Chaney appears procedurally: the Supreme Court granted certiorari, vacated, and remanded for reconsideration in light of Hunter. The Eleventh Circuit noted this to explain why holding Lowery’s appeal in abeyance was no longer warranted and to signal Hunter’s immediate system-wide effect.

3.2. Legal Reasoning

The court’s reasoning followed a waiver-first sequence common in federal plea cases:

1. Identify the waiver’s scope and exceptions. Lowery’s waiver expressly relinquished the right to appeal his sentence “on any ground,” with limited exceptions (guidelines-range exceedance as determined by the court, statutory maximum, Eighth Amendment, or if the government appealed). Lowery’s due-process notice complaint did not fall within any enumerated exception.
2. Confirm knowing and voluntary assent. Lowery initialed and signed the agreement; the magistrate judge reviewed the waiver and exceptions during the plea colloquy; Lowery confirmed understanding. This satisfied Bushert.
3. Reject “sentencing-advisement defeats waiver” as a matter of law. The panel applied Hunter v. United States (and, independently, United States v. Bascomb) to hold that sentencing statements about a right to appeal do not negate a valid waiver, even if the government does not object.
4. Consider the miscarriage-of-justice backstop (and find it absent). Hunter allows non-enforcement only for an “obvious” and “egregious” error. Lowery did not argue miscarriage of justice, and the court found the claim far from that threshold—particularly because the district court stated it did not rely on the challenged witness testimony and based the sentence on unobjected-to PSI facts.

3.3. Impact

Although the decision is “NOT FOR PUBLICATION,” it reflects a significant post-Hunter operational shift in waiver litigation:

• Hunter harmonizes the law nationally on a recurring waiver issue: defendants can no longer plausibly rely on routine sentencing advisements (“you have 14 days to appeal”) to escape an otherwise valid waiver. Lowery shows the Eleventh Circuit will apply that rule straightforwardly.
• Waiver challenges will pivot toward “miscarriage of justice.” But Hunter makes that exception exceptionally narrow, and Lowery illustrates how hard it will be to meet—especially where the sentencing court disclaims reliance on the contested material.
• Sentencing-procedure claims (including due-process claims) will often be waiver-barred unless they fall within negotiated exceptions or rise to the “obvious, egregious” level described in Hunter.
• Drafting and colloquy precision becomes even more outcome-determinative. The opinion underscores that careful plea-colloquy treatment of waivers (and clear articulation of exceptions) largely forecloses later appellate review.

4. Complex Concepts Simplified

Sentence-appeal waiver

A promise in a plea agreement that the defendant will not appeal the sentence (subject to listed exceptions). Courts treat it like a contract term so long as the defendant agreed knowingly and voluntarily.

Knowing and voluntary

The defendant understood what rights were being given up and chose to give them up. Under United States v. Bushert, this is commonly proven by a plea colloquy where the judge specifically reviews the waiver.

De novo review

The appellate court decides the waiver’s validity fresh, without deference to the district court, because it is a legal question.

Miscarriage of justice (as used in Hunter)

A very narrow exception allowing a court to disregard a waiver only for an obvious, egregious error that no reasonable judge would make and that would undermine the integrity of the judicial system.

Presentence Investigation Report (PSI)

A probation-prepared report used at sentencing. If facts in the PSI are not objected to, courts may adopt them and rely on them in sentencing. Here, the district court emphasized it sentenced based on unobjected-to PSI facts, not the contested witness testimony.

5. Conclusion

United States v. Justin Demon Lowery is a clean application of the Supreme Court’s newly controlling framework in Hunter v. United States: sentencing-stage statements about an ability to appeal do not undo a knowing and voluntary appeal waiver, and the only escape hatch is a narrowly defined miscarriage of justice—an “obvious” and “egregious” error. Lowery’s procedural due-process complaint about surprise sentencing testimony did not fit the plea agreement’s exceptions, did not meet Hunter’s stringent standard, and was further undercut by the district court’s express statement that it did not rely on the testimony. The appeal was therefore dismissed at the threshold, reinforcing the decisive power of properly administered appeal waivers in federal sentencing practice.