Clarifying Risk Allocation in Appeal Waivers after Guideline Amendments – A Commentary on United States v. Tovis Richardson (4th Cir. 2025)

1. Introduction

The Fourth Circuit’s published decision in United States v. Richardson, No. 23-4471 (July 28 2025), addresses two recurring post-plea questions:

1. Can a defendant circumvent an otherwise valid appellate-waiver clause by invoking a “miscarriage of justice” theory based on retroactive Sentencing-Guidelines amendments that did not exist at the time of the plea?
2. When, if ever, will the court find ineffective assistance of counsel (IAC) on direct appeal when the alleged deficiency is the lawyer’s failure to object to a two-level firearm enhancement under U.S.S.G. § 2D1.1(b)(1)?

Tovis Ation Richardson pleaded guilty to methamphetamine-distribution conspiracy and a substantive possession count. His written plea agreement contained a broad waiver of appellate rights, with the usual carve-outs for ineffective assistance and prosecutorial misconduct. At sentencing, the district court added two enhancements (firearm possession and maintaining a drug premises), resulting in a 240-month sentence—squarely within the unobjected-to 210–262-month guideline range.

On appeal Richardson argued (i) the firearm enhancement was wrongly applied and (ii) his lawyer was ineffective for failing to object. The government invoked the appeal waiver. The Fourth Circuit, in an opinion by Senior Judge Floyd joined by Judges Wynn and Thacker, enforced the waiver, rejected the IAC claim as premature, and affirmed.

2. Summary of the Judgment

The court held:

1. Appeal-waiver enforceability – The waiver was knowing, intelligent, and covered “any ground,” including guideline-calculation challenges permitted by 18 U.S.C. § 3742. Richardson’s attempt to re-characterise his argument as a “miscarriage of justice” because of the new “zero-point offender” reduction at § 4C1.1 failed; subsequent favorable changes in the law are a risk defendants assume when they bargain for a plea.
2. Ineffective assistance (direct appeal) – The record did not “conclusively” show that counsel’s non-objection was objectively unreasonable; existing Fourth-Circuit precedent overwhelmingly supports applying the firearm bump where a shotgun is found in a vehicle used to distribute drugs. The proper vehicle for a fuller IAC record is a 28 U.S.C. § 2255 motion.

3. Analysis

3.1 Precedents Cited and Their Influence

• United States v. Blick, 408 F.3d 162 (4th Cir. 2005) – Established the “knowingly and intelligently” standard for appeal-waiver validity. The panel used Blick as its baseline.
• United States v. Johnson, 410 F.3d 137 (4th Cir. 2005) – Held that defendants cannot rescind appeal waivers based on later favorable legal changes; cited to reject Richardson’s § 4C1.1 argument.
• United States v. Copeland, 707 F.3d 522 (4th Cir. 2013) – Same point as Johnson; reinforced allocation-of-risk rationale.
• United States v. Apple, 962 F.2d 335 (4th Cir. 1992) & progeny (Bolton, Mondragon) – Provide that a firearm found “where the conspiracy was carried out” suffices for § 2D1.1(b)(1). These cases made counsel’s objection unlikely to succeed.
• United States v. Freeman, 24 F.4th 320 (4th Cir. 2022) (en banc) – The rare instance where the Fourth Circuit found IAC on direct appeal. Richardson tried to analogise, but the court distinguished Freeman because here the law was not “unequivocally” against the enhancement.
• Kisor v. Wilkie, 588 U.S. 558 (2019) & United States v. Campbell, 22 F.4th 438 (4th Cir. 2022) – Commentary-versus-text framework, mentioned when the panel referenced the “clearly improbable” language from Application Note 11(A).

3.2 Legal Reasoning

a. Appeal-Waiver Validity and Scope

Applying contract principles, the court examined the Rule 11 colloquy and the explicit waiver language. Because Richardson did not dispute that he had discussed the waiver with counsel and understood it, validity was uncontested.

b. “Miscarriage of Justice” Escape Hatch

The panel emphasized that only a “narrow class of claims” warrants setting aside a waiver. A post-plea guideline amendment—even one retroactively applicable—does not qualify; risk-allocation is intrinsic to plea bargaining (Johnson). Enforcing the waiver therefore did not create a miscarriage of justice.

c. Ineffective Assistance – Direct-Appeal Standard

To succeed on direct appeal, the deficiency must “conclusively appear” on the face of the record (Freeman). The court reviewed the existing firearm-enhancement jurisprudence and concluded that a reasonably competent lawyer could view an objection as futile. Absent conclusive contrary proof (e.g., affidavit, undisputed factual showing of inoperability, etc.), the claim belongs in collateral review.

d. Firearm Enhancement Merits (Informing the IAC Analysis)

Even though the merits were formally waived, the court sketched why the argument would fail:

• Shotgun found in trunk of car; car repeatedly used in hand-to-hand sales during the charged conspiracy.
• Fourth-Circuit precedent treats that proximity as sufficient nexus.
• Weapon need not be loaded, operable, or a handgun; unloaded/inoperable weapons can still increase risk of violence (Harris, Leyva).

3.3 Impact of the Judgment

The ruling has at least three forward-looking effects:

1. Limited Fertility of § 4C1.1-Based Appeals – Defendants with prior waivers cannot rely on the new zero-point offender reduction to reopen sentences; district courts and counsel will cite Richardson to enforce finality.
2. Clarified IAC Threshold on Direct Appeal – The decision underscores how rarely the Fourth Circuit will find counsel deficient on a cold record, particularly for strategic non-objections that are at least debatable under existing precedent.
3. Reaffirmed Scope of § 2D1.1(b)(1) – By cataloguing multi-circuit cases upholding shotgun-and-vehicle scenarios, the opinion fortifies the enhancement’s breadth and signals to litigants that challenges require stronger, case-specific facts (e.g., proof the gun was locked, broken, or geographically remote).

4. Complex Concepts Simplified

• Appeal Waiver – A clause in a plea agreement where a defendant gives up the right to appeal in exchange for concessions (e.g., charge dismissal, guideline recommendations). It functions like a contract: knowingly, intelligently, and voluntarily entered waivers are enforced.
• Miscarriage of Justice Exception – An equitable safety valve permitting courts to hear an otherwise-waived appeal when enforcing the waiver would be fundamentally unfair (e.g., actual innocence). The Fourth Circuit keeps the category “narrow.”
• § 2D1.1(b)(1) Firearm Enhancement – Adds two offense-levels if a gun was possessed “in connection with” drug trafficking. The government’s burden is only “preponderance of the evidence.” Defendants may rebut if it is “clearly improbable” the gun was tied to the offense.
• § 4C1.1 Zero-Point Offender Adjustment – A 2023 amendment giving first-time, non-violent offenders a two-level guideline reduction. Though retroactive (effective Feb. 2024), it does not override appeal waivers.
• Ineffective Assistance (Strickland Test) – Requires showing (1) deficient performance falling below objective reasonableness, and (2) prejudice (reasonable probability of a different outcome). On direct appeal, the deficiency must be indisputable on the existing record.

5. Conclusion

United States v. Richardson reinforces two core principles of federal criminal practice:

• Plea-based appeal waivers remain robust; later guideline amendments—even those expressly made retroactive—do not, by themselves, unlock a waived sentencing challenge.
• The bar for IAC findings on direct appeal is exceedingly high; unless counsel’s error is patent and outcome-determinative, defendants must pursue § 2255 collateral review.

By articulating these rules in a published opinion, the Fourth Circuit provides clear guidance to district courts, defense counsel, and prosecutors negotiating pleas. The decision also offers cautionary lessons to defendants: bargain carefully, understand the lasting consequences of a waiver, and develop any sentencing objections—and the factual record supporting them—before sentencing rather than rely on appellate rescue.