Hahn Clarified: Tenth Circuit Treats Failure to Explain an Appeal Waiver as a Knowing-and-Voluntary Issue, Not a Miscarriage of Justice; General Rule 11 Colloquy Suffices and Custodial Challenge Is Moot Upon Release

Introduction

In United States v. Bralley, No. 25-6024 (10th Cir. July 14, 2025) (per curiam), the Tenth Circuit addressed two recurring issues in federal appellate practice: (1) the effect of a defendant’s release from custody on an appeal that seeks only to challenge the substantive reasonableness of the term of imprisonment; and (2) enforcement of a plea-based appellate waiver under United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc).

Defendant-appellant Darla Bralley pleaded guilty to wire fraud and filing a false tax return, received a 24-month sentence (a downward variance from the 30–37-month Guideline range), and was ordered to pay roughly $545,000 in restitution to her employer and the IRS. Her plea agreement contained a broad appeal waiver that expressly encompassed restitution, subject to a narrow exception permitting an appeal of substantive reasonableness only if the sentence exceeded the advisory Guideline range calculated by the district court. After serving her prison sentence, Bralley obtained an out-of-time appeal through a 28 U.S.C. § 2255 proceeding that established she had directed counsel to file a notice of appeal. The government moved to enforce the appeal waiver.

The Tenth Circuit dismissed the challenge to the term of imprisonment as moot due to Bralley’s release, and enforced the appeal waiver to foreclose her remaining restitution challenge. In doing so, the court offered clarifying guidance on the proper categorization of ineffective-assistance arguments under Hahn and on what suffices to establish a knowing and voluntary appellate waiver under Rule 11.

Summary of the Opinion

Mootness of custodial challenge: Because Bralley had completed her prison term, her intended argument that the 24-month term was substantively unreasonable no longer presented a live controversy. The court took judicial notice of the Bureau of Prisons’ Inmate Locator and dismissed that portion as moot. See North Carolina v. Rice, 404 U.S. 244 (1971); United States v. Muskett, 970 F.3d 1233 (10th Cir. 2020).
Appeal waiver enforcement: The government’s Hahn motion to enforce the appellate waiver was granted as to Bralley’s apparent desire to challenge restitution. The court:
- did not address Hahn’s scope prong because Bralley did not contest it, see United States v. Porter, 405 F.3d 1136 (10th Cir. 2005);
- treated Bralley’s ineffective-assistance framing as a knowing-and-voluntary issue under Hahn’s second prong—not a “miscarriage of justice” under the third prong—because her argument concerned counsel’s failure to explain the waiver, not ineffectiveness in the negotiation of the waiver;
- found the plea agreement’s text and the Rule 11 colloquy sufficient to show the waiver was knowing and voluntary; and
- held Bralley failed to carry her burden to rebut the waiver, particularly in the absence of a district court credibility finding that counsel had not advised her about the waiver.
Disposition: Appeal dismissed as moot insofar as it challenged the imprisonment term; otherwise dismissed by enforcing the appellate waiver, including as to restitution.

Analysis

Precedents Cited and Their Role

United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc):
Hahn supplies the controlling framework for motions to enforce appeal waivers. The court applies three inquiries: (1) whether the appeal falls within the waiver’s scope; (2) whether the waiver was knowing and voluntary; and (3) whether enforcement would result in a miscarriage of justice.

Hahn also identifies limited “miscarriage of justice” grounds, including ineffective assistance of counsel “in connection with the negotiation of the waiver,” reliance on an impermissible factor such as race, a sentence exceeding the statutory maximum, or waiver unlawfulness that seriously affects the fairness, integrity, or public reputation of judicial proceedings.

In Bralley, the court sharpened the boundary between prongs (2) and (3) by classifying alleged failures to explain a waiver as a knowing-and-voluntary issue (prong two), not as ineffective assistance that qualifies under the miscarriage-of-justice gateway (prong three). This categorization foreclosed Bralley’s attempt to bypass the ordinary knowing-and-voluntary analysis by invoking “miscarriage of justice.”
United States v. Porter, 405 F.3d 1136 (10th Cir. 2005):
Porter permits the court to bypass Hahn prongs not placed in dispute by the defendant. Here, because Bralley did not challenge scope, the panel did not analyze it—even though the waiver expressly covered “any restitution” and excepted only above-Guidelines substantive reasonableness challenges, which were not implicated by her below-Guidelines sentence.
North Carolina v. Rice, 404 U.S. 244 (1971):
Rice announces the basic mootness principle: federal courts cannot decide questions that no longer affect the parties’ rights. Invoking this principle, the panel held that Bralley’s challenge to the substantive reasonableness of her custodial term was moot upon her release.
United States v. Muskett, 970 F.3d 1233 (10th Cir. 2020):
The court cited Muskett to take judicial notice of the BOP Inmate Locator’s record of release in resolving mootness. This underscores a pragmatic evidentiary mechanism for jurisdictional determinations tied to custody status.

Legal Reasoning

1) Mootness forecloses a completed-custody reasonableness challenge.
The panel first disposed of the appeal to the extent it sought review of the imprisonment term’s substantive reasonableness. Because the relief sought (shorter prison time) could no longer be granted after release, the controversy was moot. The court took judicial notice of BOP’s records to confirm release. The decision thus reaffirms that such sentencing appeals cannot proceed absent ongoing, redressable consequences tied to the specific component challenged.
2) Framing the waiver attack: second vs. third Hahn prong.
Bralley styled her argument as both a knowing-and-voluntary defect and, ostensibly, as a miscarriage of justice grounded in ineffective assistance. The panel held that the latter label did not fit: under Hahn, a miscarriage-of-justice claim based on ineffective assistance must be “in connection with the negotiation of the waiver.” Alleged failures to explain or advise about the waiver (as opposed to defects in negotiating its terms) are assessed under the second prong—whether the waiver was knowing and voluntary.
3) Knowing-and-voluntary showing was sufficient on this record.
The court identified two anchors for the knowing-and-voluntary finding:
- Plea agreement text: The waiver provision explicitly states that the defendant “knowingly and voluntarily waives” her right to appeal, including restitution. This provision is directed to the waiver itself, not merely global boilerplate.
- Rule 11 colloquy adequacy: The district court repeatedly confirmed with Bralley that she was waiving her right to appeal “except in some very limited circumstances,” asked whether she had discussed the waiver with counsel, whether she understood “precisely what rights” she was waiving, and elicited counsel’s assurance that she understood the rights she was giving up. The court also explicitly found her plea and rights waivers voluntary.
The panel deemed this colloquy adequate under Rule 11, rejecting Bralley’s argument that the district court was required to spell out the specific exceptions or parse “technical language” of the waiver’s exception (which, in any event, would not have applied because her sentence was below the advisory range).
4) No credibility resolution on pre-plea advice, and appellant bears the burden.
Although a § 2255 hearing occurred, the district court focused solely on whether Bralley instructed counsel to file an appeal; it did not make credibility findings about whether counsel explained the waiver before the plea. Without an adverse credibility finding against counsel, and in light of the strong record evidence from the plea agreement and colloquy, Bralley could not meet her burden to show she “did not understand the waiver.” See Hahn, 359 F.3d at 1329.
5) Result: Enforcement of the waiver, dismissal of restitution challenge.
Because the waiver was valid and enforceable, the court granted the government’s motion. Any challenge to restitution—explicitly encompassed by the waiver—was dismissed.

Impact and Practical Implications

Boundary clarity under Hahn: The decision provides persuasive guidance that allegations that counsel failed to explain an appellate waiver belong under the knowing-and-voluntary prong, not the miscarriage-of-justice prong. To invoke the miscarriage-of-justice gateway on an ineffective-assistance theory, a defendant should show defects tied to the negotiation of the waiver itself (e.g., poor advice that affected acceptance of specific waiver terms), consistent with Hahn.
Rule 11 practice: A general but clear Rule 11 discussion—confirming that appellate rights are being waived except for limited circumstances, confirming defendant’s understanding, and eliciting counsel’s assurances—will typically suffice in the Tenth Circuit, even if the court does not enumerate each exception on the record. Best practice remains to recite the core terms, including any exceptions, but this opinion underscores that adequacy is judged holistically.
Record-building for waiver challenges: Defendants seeking to overcome a waiver should develop a record with explicit credibility findings on pre-plea advice. Absent such findings, solemn in-court acknowledgments and the written plea agreement are powerful evidence of a knowing and voluntary waiver.
Restitution appeals and plea drafting: Where a waiver expressly extends to “any restitution,” appellate avenues to dispute restitution amounts are foreclosed. If restitution scope (e.g., tax-loss years or losses beyond the count of conviction) is contested, defense counsel must litigate it in the district court or negotiate limiting language in the plea agreement, because appellate relief will likely be unavailable.
Out-of-time appeals after § 2255 and mootness: District courts often grant an out-of-time appeal remedy for counsel’s failure to notice an appeal (consistent with the approach recognized in cases like Garza v. Idaho, 139 S. Ct. 738 (2019)). This opinion is a cautionary tale: if the custodial term concludes before the appeal is resolved, a standalone challenge to the prison term’s reasonableness may become moot. Counsel should pursue expedition where live custodial issues are at stake.
Persuasive, not precedential: The disposition is an “order and judgment” that is nonprecedential, though citable for persuasive value under Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Nonetheless, its treatment of Hahn categories and Rule 11 adequacy provides useful guidance for the bar and bench.

Complex Concepts Simplified

Appeal waiver: A plea agreement term in which a defendant agrees not to appeal certain aspects of the conviction or sentence. Courts enforce such waivers if they cover the issue on appeal, were entered knowingly and voluntarily, and enforcement would not cause a miscarriage of justice.
Hahn factors: The Tenth Circuit’s three-part test: scope, knowing-and-voluntary, and miscarriage of justice. The last includes narrow categories (e.g., waiver negotiation IAC, race, statutory maximum).
Rule 11 colloquy: The judge’s in-court questioning to ensure a plea and associated waivers are voluntary and understood. For appellate waivers, Rule 11(b)(1)(N) requires the court to discuss the waiver’s terms.
Substantive reasonableness: Appellate review of the length of a sentence for reasonableness in light of 18 U.S.C. § 3553(a) factors, as opposed to procedural reasonableness (errors in calculation or procedure).
Mootness: A case is moot when events have eliminated the court’s ability to grant meaningful relief. A challenge solely to the already-served custodial term is typically moot upon release.
Judicial notice of BOP records: Courts may take notice of official custody status posted by the Bureau of Prisons to inform jurisdictional analyses like mootness.
Restitution: Court-ordered repayment to victims. Plea waivers often include restitution; if so, appellate review is usually foreclosed.
28 U.S.C. § 2255 and reinstated judgment: A post-conviction remedy. If counsel failed to file an appeal when directed, courts often vacate and reenter judgment to allow a timely appeal. That restored appeal remains subject to any valid appellate waiver.

Conclusion

United States v. Bralley reinforces, in a persuasive and practical way, core principles governing appellate waivers and mootness in federal criminal appeals. The Tenth Circuit:

dismissed a completed-custody reasonableness challenge as moot;
clarified that alleged failures to explain a waiver are assessed under Hahn’s knowing-and-voluntary prong, not as a miscarriage of justice unless tied to negotiation of the waiver;
held that a straightforward Rule 11 colloquy plus clear plea text suffice to uphold an appellate waiver; and
enforced a waiver that by its terms foreclosed challenges to restitution.

For practitioners, the opinion underscores the importance of careful plea drafting and thorough on-the-record advisements about appellate waivers, the need to secure explicit credibility findings when contesting waiver validity, and the urgency of expediting appeals where custody-related relief is sought. While nonprecedential, the decision offers clear guidance on how the Tenth Circuit will categorize and evaluate waiver challenges and how it will treat mootness when a defendant is no longer in custody.