Enforceability of Appeal Waivers in Federal Plea Agreements: United States v. Powell

Introduction

United States v. Jeremy Michael Lee Powell (11th Cir. Feb. 26, 2025) addresses the scope and enforceability of appeal waivers entered into as part of a federal plea agreement. Defendant‐appellant Jeremy Powell pleaded guilty to two counts of producing child pornography, receiving a 600‐month custodial sentence followed by life supervised release. On appeal, Powell challenged the district court’s sentencing procedures—arguing lack of allocution, inadequate explanation, and failure to address sentencing factors. The Government moved to dismiss, asserting Powell had knowingly and voluntarily waived his right to appeal. Ultimately, the Eleventh Circuit agreed with the Government, enforcing the waiver and dismissing the appeal, remanding only to correct a clerical error in the judgment.

Summary of the Judgment

The Eleventh Circuit held, by a per curiam decision, that:

• The plea agreement contained a clear, bolded appeal‐waiver provision covering “conviction and/or sentence,” subject to narrow exceptions.
• The district court’s Rule 11 colloquy fully informed Powell of his rights and the effect of the waiver, satisfying the standards of Bushert and Boyd.
• Powell’s challenges—(i) failure to allocute, (ii) inadequate explanation of sentence, and (iii) failure to articulate § 3553(a) factors—fell within the scope of his valid waiver.
• No exception entitlement arose: the sentence did not exceed statutory maximums, did not constitute an upward departure, and Powell did not claim ineffective assistance of counsel.
• The appeal was dismissed, and the case was remanded only to correct a clerical mis-citation of 18 U.S.C. § 2251(a) instead of “(1).”

Analysis

1. Precedents Cited

The Court relied heavily on established Eleventh Circuit authority regarding appeal waivers and Rule 11 colloquies:

• King v. United States, 41 F.4th 1363 (11th Cir. 2022): Recognized de novo review of waiver validity and scope; endorsed standards for knowing and voluntary waivers.
• United States v. Johnson, 541 F.3d 1064 (11th Cir. 2008): Confirmed general enforceability of sentence‐appeal waivers when made knowingly and voluntarily.
• United States v. Bushert, 997 F.2d 1343 (11th Cir. 1993): Held that enforcement requires (1) specific questioning during Rule 11 colloquy or (2) manifest clarity from record that defendant understood the waiver’s significance.
• United States v. Boyd, 975 F.3d 1185 (11th Cir. 2020): Clarified that the “touchstone” is whether the defendant clearly understood he was giving up his right to appeal under most circumstances.
• United States v. Bascomb, 451 F.3d 1292 (11th Cir. 2006): Emphasized strict enforcement of knowing and voluntary waiver provisions according to their terms.
• United States v. Grinard-Henry, 399 F.3d 1294 (11th Cir. 2005): Confirmed that appeal waivers cover even debatable legal issues and blatant error.
• United States v. Massey, 443 F.3d 814 (11th Cir. 2006) & United States v. Wimbush, 103 F.3d 968 (11th Cir. 1997): Authorized sua sponte correction of clerical errors in a judgment on remand.
• United States v. Carrasquillo, 4 F.4th 1265 (11th Cir. 2021): Reiterated the court’s authority to remand solely for clerical corrections.

2. Legal Reasoning

The Court’s step‐by‐step reasoning unfolded as follows:

1. Review Standard: Conduct de novo review of the validity and scope of the appeal waiver (King).
2. Establishment of a Waiver:
   • The plea agreement contained a bolded “Right to Appeal and Post-Conviction Relief” section.
   • Defendant initialed every page, signed the text of waiver, and attorney certified counsel’s explanation and client’s understanding.
3. Rule 11 Colloquy:
   • District court placed Powell under oath, ensured competency and absence of impairing influences.
   • Court confirmed Powell had read, discussed, and understood every plea‐agreement term, including the waiver.
   • Court specifically informed Powell that he was giving up his right to appeal except for:
     • excess of statutory maximum;
     • upward departure from the Guidelines;
     • ineffective assistance of counsel.
   These precautions satisfied both prongs of Bushert and the “touchstone” test of Boyd.
4. Scope of the Waiver:
   • Powell’s sentencing complaints—lack of allocution, inadequate explanation, failure to articulate § 3553(a) factors—fell squarely within the waiver’s terms.
   • No exception applied: the sentence did not exceed the statutory maximum of 30 years per count plus life supervised release, no upward departure occurred, and no ineffective-assistance claim was raised.
5. Clerical Correction: Although enforcing the waiver, the Court invoked its authority under Massey and Wimbush to remand for a clerical fix—the statutory citation for Count Three should read “§ 2251(a) and (e),” not “§ 2251(1) and (e).”

3. Impact

This decision will guide practitioners and lower courts in several ways:

• Reinforces the critical importance of a robust Rule 11 colloquy when entering waivers—counsel must ensure explicit on‐the‐record advisals.
• Affirms that a well‐drafted, voluntarily entered appeal waiver bars challenges to sentencing procedures, including arguably meritorious arguments.
• Clarifies the narrow window of exceptions—sentences above statutory maximums, upward departures, and ineffective‐assistance claims.
• Confirms appellate courts’ power to correct purely clerical errors on remand even when otherwise enforcing a waiver.
• Likely to reduce frivolous appeals by defendants who have contractually foregone most appellate rights.

Complex Concepts Simplified

• Allocution: The defendant’s opportunity to speak before sentencing, expressing remorse or presenting mitigation.
• Rule 11 Colloquy: The formal on-the-record dialogue between judge and defendant ensuring the plea is voluntary and informed.
• Appeal Waiver: A contractual provision in a plea agreement where the defendant gives up the right to appeal conviction or sentence.
• Statutory Maximum: The highest punishment a statute allows for a given offense.
• Upward Departure/Variance: A sentence above the Sentencing Guidelines range, either by departure (based on policy grounds) or variance (based on 18 U.S.C. § 3553(a) factors).
• Supervised Release: A period of monitoring after imprisonment, during which the defendant must comply with certain conditions.
• Clerical Error Remand: When an appellate court sends a case back to correct typographical or citation mistakes that do not affect substantive rights.

Conclusion

United States v. Powell crystallizes the Eleventh Circuit’s rigorous approach to enforcing appeal waivers in federal plea agreements. By requiring clear, bolded waiver language, thorough Rule 11 questioning, and documented defendant understanding, the decision underscores that defendants generally cannot resurrect waived issues on appeal—even if the arguments appear strong. At the same time, the Court preserved its authority to correct innocuous clerical mistakes. This ruling will shape plea‐bargaining tactics, reinforce the indivisibility of waiver provisions, and guide lower courts in conducting meticulous plea colloquies to uphold the finality of convictions and sentences.