Appellate Waiver Enforced Absent Proof of Government Bad Faith in Withholding a § 3E1.1 Recommendation

1. Introduction

In United States v. Robert Thompson (3d Cir. June 10, 2026) (not precedential), the Third Circuit affirmed a 121-month sentence for fentanyl trafficking without reaching the merits of the defendant’s Guidelines challenge. The court enforced a broad appellate waiver in Thompson’s plea agreement and held that Thompson failed to establish an exception to enforcement—either (i) a government breach of the plea agreement or (ii) a “miscarriage of justice.”

The central dispute arose from the government’s refusal at sentencing to recommend a reduction for acceptance of responsibility under U.S.S.G. § 3E1.1. Thompson argued that the government’s refusal was based on pre-plea conduct the government allegedly already knew about when it signed the agreement, and therefore constituted bad faith and a breach sufficient to invalidate his appellate waiver.

2. Summary of the Opinion

The Third Circuit held that Thompson’s sole appellate issue—whether the District Court erred in denying a U.S.S.G. § 3E1.1 reduction—fell within his knowingly and voluntarily executed appellate waiver. The court further held:

  • Thompson did not show the government breached the plea agreement by acting in bad faith when it declined to recommend a § 3E1.1 reduction; and
  • Enforcing the waiver would not work a “miscarriage of justice.”

Because no exception applied, the court affirmed the judgment of sentence.

3. Analysis

3.1. Precedents Cited

Appellate waivers and the “miscarriage of justice” safety valve

  • United States v. Gwinnett, 483 F.3d 200 (3d Cir. 2007): The opinion relied on Gwinnett for the proposition that the court retains jurisdiction over an appeal even when waived, but will not exercise that jurisdiction unless enforcing the waiver would cause a miscarriage of justice. This framed the threshold inquiry: the waiver forecloses merits review unless a recognized exception is shown.
  • United States v. Khattak, 273 F.3d 557 (3d Cir. 2001): The court applied Khattak’s multi-factor miscarriage-of-justice framework (clarity/gravity/character of error, impact on defendant and government, and defendant’s acquiescence). The decision reiterates that this exception is reserved for “unusual circumstances.”
  • United States v. Castro, 704 F.3d 125 (3d Cir. 2013): Cited to underscore that it is “not enough that an issue be meritorious” to qualify as a miscarriage of justice; waiver enforcement does not turn on whether the underlying Guidelines argument might have traction.

Government breach as a bar to waiver enforcement

  • United States v. Schwartz, 511 F.3d 403 (3d Cir. 2008): Supplies the governing rule that an appellate waiver is not enforceable if the government breaches its obligations under the plea agreement.
  • Puckett v. United States, 556 U.S. 129 (2009): Cited for the contract-analogy baseline: plea bargains are “essentially contracts,” shaping how obligations and alleged breaches are analyzed.
  • United States v. Isaac, 141 F.3d 477 (3d Cir. 1998): Central to the court’s treatment of “sole discretion” provisions. Isaac recognizes an implied duty of good faith and fair dealing (drawing from Restatement (Second) of Contracts § 205) and provides a framework for evidentiary hearings where a defendant makes a colorable claim that the government exercised discretion in bad faith.
  • United States v. Floyd, 428 F.3d 513 (3d Cir. 2005): Places the burden on the defendant to prove by a preponderance of the evidence that the government violated the plea agreement. This burden allocation did much of the work in Thompson because the record contained no developed proof of bad faith.
  • United States v. Roe, 445 F.3d 202 (2d Cir. 2006) and United States v. Knights, 968 F.2d 1483 (2d Cir. 1992): Invoked as persuasive authority for a fairness principle: the government should not induce a plea by promising to consider or confer a benefit while already knowing it will deny the benefit based on facts known at signing. The Third Circuit did not adopt a new rule from these cases; instead, it assumed the point arguendo and held Thompson failed on the facts.

Standards of review and preservation

  • United States v. Moscahlaidis, 868 F.2d 1357 (3d Cir. 1989): Noted in the discussion of standards of review applicable to alleged plea breaches.
  • United States v. Moses, 142 F.4th 126 (3d Cir. 2025): Used to reject the notion that parties can stipulate the appellate standard of review; the court determines the correct standard.
  • United States v. Davis, 105 F.4th 541 (3d Cir. 2024): Cited regarding the possibility of plain-error review where objections are inadequately preserved, and also referenced alongside Isaac for good-faith principles.

Acceptance of responsibility and post-charge conduct

  • United States v. Mercado, 81 F.4th 352 (3d Cir. 2023): Supports the proposition that violations of conditions of release can justify denial of a § 3E1.1 reduction. This case blunted Thompson’s implicit “it’s unrelated” argument by confirming that compliance failures can reflect a lack of genuine acceptance.
  • United States v. Harris, 751 F.3d 123 (3d Cir. 2014): Reinforces the deference owed to the district court’s assessment of sincerity and acceptance of responsibility, explaining why—even absent waiver—the appeal would face a high hurdle on the merits.

3.2. Legal Reasoning

  1. The waiver covers the claim. Thompson’s only issue—the denial of a § 3E1.1 reduction—fell comfortably within his “broad appellate waiver” barring “any and all possible grounds for appeal.”
  2. Breach theory turns on proof of bad faith. The plea agreement conditioned the government’s § 3E1.1 recommendation on Thompson “adequately demonstrat[ing]” acceptance “as required by the Sentencing Guidelines.” Under Puckett and Isaac, such provisions are constrained by good faith. The court effectively accepted that if the government refused a recommendation solely on facts it already knew at signing (and thus had implicitly accepted as compatible with the bargain), that could amount to bad faith and likely defeat the waiver.
  3. Thompson did not meet his burden to show what the government knew—and when. The government conceded it knew of some misconduct (one positive marijuana test and a fentanyl-distribution arrest) when it signed. But it represented it did not know of Thompson’s other violations (multiple additional positive tests, alcohol positives, driving on a suspended license, repeated lying, and continued failure to seek employment). Thompson did not dispute that representation on appeal, and he did not seek an evidentiary hearing under the Isaac framework to test the government’s good faith. Applying Floyd, the court held Thompson failed to show bad faith.
  4. No miscarriage of justice. Under Khattak, the court rejected Thompson’s argument that he received “no gain” for his waiver. The court characterized his bargain as receiving what he contracted for: “good-faith consideration” of the reduction. The denial of § 3E1.1—particularly in light of Mercado—did not constitute the rare, “unusual” circumstance justifying waiver non-enforcement.

3.3. Impact

Although labeled “NOT PRECEDENTIAL,” the opinion is instructive in three practical ways:

  • Record-development matters for breach claims. A defendant challenging waiver enforcement on breach/bad-faith grounds must build a record—often through an Isaac-type evidentiary hearing—probing what the government knew at the time of contracting and why it exercised discretion as it did. Without that, courts may accept the government’s unrebutted representations.
  • Broad waivers will be enforced even when sentencing expectations collapse. The court treated disappointment over the loss of a § 3E1.1 reduction as insufficient to trigger the miscarriage-of-justice exception, reinforcing the predictability and enforceability of appellate waivers in the Third Circuit.
  • Compliance while on release can be outcome-determinative for § 3E1.1. By relying on Mercado and emphasizing repeated violations, the decision signals that defendants who continue unlawful or deceptive conduct after charging (even before pleading) face substantial risk of losing acceptance credit and, by extension, sentencing leverage.

4. Complex Concepts Simplified

  • Appellate waiver: A clause in a plea agreement where a defendant agrees not to appeal the conviction or sentence (with limited exceptions). Courts generally enforce these waivers to honor the bargain.
  • Acceptance of responsibility (U.S.S.G. § 3E1.1): A Guidelines reduction (typically 2 or 3 levels) for defendants who clearly demonstrate genuine acceptance of their criminal conduct. Continued criminality, dishonesty with supervision, or repeated release violations can undermine acceptance.
  • Government breach / duty of good faith: Even when a plea gives the government discretion, it must exercise that discretion honestly and not for an improper purpose. A defendant must prove breach; it is not presumed.
  • Miscarriage of justice: A narrow safety valve allowing courts to disregard a waiver in extraordinary situations, not merely because an argument might be correct or a sentence seems harsh.
  • Evidentiary hearing (in this context): A fact-finding proceeding the district court may hold to resolve a dispute over whether the government acted in bad faith in performing the plea agreement.

5. Conclusion

The Third Circuit enforced Thompson’s appellate waiver because his claim fell within its scope and he failed to prove the government acted in bad faith in declining to recommend a § 3E1.1 reduction. The decision reinforces two core lessons of federal plea practice in the Third Circuit: (1) waiver exceptions are narrow and fact-dependent, and (2) defendants alleging a breach must develop a record—particularly where the alleged breach depends on what the government knew at the time of the agreement and whether it exercised discretion in good faith.