Narrow Construction of Revocation Appeal Waivers in Anders Cases: “Sentence” Waivers Do Not Bar Challenges to Revocation Findings

Introduction

In United States v. Mansker (10th Cir. Nov. 5, 2025), a Tenth Circuit panel (Judges Tymkovich, Baldock, and Federico) dismissed an appeal pursuant to Anders v. California, 386 U.S. 738 (1967), and granted defense counsel’s motion to withdraw. The case arose after Jarrod Demar Mansker pleaded guilty to domestic assault by a habitual offender in Indian Country (18 U.S.C. §§ 1151, 117(a)(1)), received a sentence of time served followed by three years of supervised release, and then—within weeks—violated several supervised-release conditions. The district court revoked supervision and imposed a 24-month custodial sentence.

On appeal, counsel filed an Anders brief stating he could find no nonfrivolous issues. The Tenth Circuit conducted the required independent review, addressed the scope and enforceability of Mansker’s appeal waiver, and concluded that while the waiver foreclosed any challenge to the length of the revocation sentence, it did not bar a challenge to the revocation decision itself. Even so, the panel found no nonfrivolous basis to contest the revocation and dismissed the appeal.

Although designated an “order and judgment” without precedential effect (see 10th Cir. R. 32.1), the decision provides persuasive guidance on three fronts: the scope of appeal waivers in the revocation context, the mechanics of Anders review when a waiver is present, and the standard for reviewing revocation findings.

Summary of the Opinion

The court granted counsel’s motion to withdraw under Anders and dismissed the appeal after an independent record review revealed no meritorious issues.
Appeal waiver: The waiver covering “a sentence imposed upon a revocation of supervised release” is valid and enforceable under United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004), and bars an attack on the two-year sentence.
Scope of waiver: Construed narrowly, the term “sentence” does not include the revocation decision (i.e., the finding of violations and revocation order). Thus, challenges to revocation findings fall outside this waiver’s scope.
Merits of revocation: The district court’s findings that Mansker violated supervised-release conditions (failure to report residence change, failure to submit urine specimens, failure to attend mental-health treatment, and drug use) were supported by plausible evidence and not clearly erroneous. Any challenge would be frivolous.
Government’s invocation of waiver: The government’s prior motion to enforce the waiver sufficed to preserve the waiver issue, consistent with United States v. Calderon, 428 F.3d 928 (10th Cir. 2005).

Analysis

Precedents Cited and Their Influence

Anders v. California, 386 U.S. 738 (1967): Establishes that appointed counsel may withdraw if, after a conscientious review, the case is “wholly frivolous,” but must file a brief pointing to anything arguably supportive of appeal and notify the client. The court must independently examine the record. Here, counsel complied, Mansker did not respond, and the panel conducted the mandated review before dismissing.
United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004): Provides the three-part test for enforcing appeal waivers: (1) scope; (2) knowing and voluntary nature; and (3) whether enforcement would result in a miscarriage of justice. The court applied Hahn to hold that the waiver validly barred a sentence challenge but, when construed narrowly, did not foreclose a challenge to the revocation decision.
United States v. Wilken, 498 F.3d 1160 (10th Cir. 2007) and United States v. Chavez-Salais, 337 F.3d 1170 (10th Cir. 2003): Support construing appeal waivers according to what a defendant would reasonably understand, with ambiguities resolved narrowly and against the government. These authorities underpin the panel’s conclusion that “sentence” does not capture a revocation finding.
United States v. Loumoli, 13 F.4th 1006 (10th Cir. 2021): Clarifies that “sentence” does not include “conviction”; in the revocation context, the analogy is that “sentence” does not include the revocation decision/finding of violations. The panel relies on this semantic distinction to limit the waiver’s scope.
United States v. Tanner, 721 F.3d 1231 (10th Cir. 2013): Confirms that clear, detailed plea language can itself demonstrate a knowing and voluntary waiver, even apart from a Rule 11 colloquy. The panel cites this to find Mansker’s waiver knowing and voluntary based on the plea’s express terms.
United States v. Elliott, 264 F.3d 1171 (10th Cir. 2001): Identifies narrow “miscarriage of justice” circumstances under which waivers will not be enforced (e.g., reliance on race, ineffective assistance rendering the waiver invalid, sentence exceeding statutory maximum, waiver otherwise unlawful). The panel found none applicable.
United States v. Andis, 333 F.3d 886 (8th Cir. 2003), cited in Hahn: Supports construing ambiguous waivers against the government. The panel invokes this principle to limit the reach of the word “sentence.”
United States v. Calderon, 428 F.3d 928 (10th Cir. 2005): Holds that the government must raise and seek enforcement of a waiver; where it does not, the court will not apply it sua sponte. Here, the government had moved to enforce earlier, which sufficed to avoid forfeiture.
United States v. Chavez, 734 F.3d 1247 (10th Cir. 2013): Articulates the clear-error standard for reviewing factual findings (a finding is clearly erroneous only if without support in the record or the appellate court is firmly convinced of error). This standard guided the panel’s affirmance of the revocation decision.

Legal Reasoning

Anders framework satisfied. Counsel represented that the record revealed no nonfrivolous issues, filed a brief identifying potential issues, and notified Mansker. The panel independently reviewed the record and agreed that the appeal was wholly frivolous.
Appeal waiver enforceability under Hahn.
- Scope: The waiver covered “a sentence imposed upon a revocation of supervised release.” Applying Wilken and Loumoli, the court held “sentence” does not encompass the revocation decision or the predicate violation findings. Ambiguities are construed narrowly and against the government. Result: challenges to the two-year term are barred; challenges to the revocation decision are not.
- Knowing and voluntary: Relying on Tanner, the panel deemed the plea’s clear and comprehensive waiver language sufficient to establish a knowing and voluntary waiver. The agreement expressly stated that counsel explained appellate rights, Mansker understood them, and he knowingly and voluntarily waived them.
- Miscarriage of justice: None of the Elliott circumstances applied. The 24-month sentence did not exceed the statutory maximum; there was no claim of race-based sentencing, no showing that ineffective assistance rendered the waiver invalid, and no independent unlawfulness of the waiver.
Revocation merits review. Because the waiver did not preclude a challenge to the revocation itself, the court assessed whether any such challenge would be nonfrivolous. Under clear-error review, the district court’s findings that Mansker failed to report a residence change, missed urinalysis submissions, failed to attend mental-health treatment, and used controlled substances were supported by plausible record evidence. Therefore, any challenge to revocation would be frivolous.
Government’s preservation of the waiver issue. Although the government indicated it would not file a merits response, it had previously moved to enforce the waiver. The panel noted that this sufficed to avoid forfeiture under Calderon.

Impact

The opinion, while nonprecedential, carries persuasive value and practical implications for criminal practice in the Tenth Circuit and beyond.

Plea drafting and waiver scope. If the government intends to foreclose appellate challenges to both (a) the revocation decision and (b) any ensuing sentence, the waiver must say so explicitly. Language limited to “sentence imposed upon a revocation” will not bar litigation over the revocation finding itself. Defense counsel should be alert to these distinctions during negotiations.
Anders practice with appeal waivers. Even when a waiver exists, appointed counsel must still evaluate issues outside the waiver’s scope—here, the revocation decision—and explain why any such claims are frivolous. Courts will independently parse waiver scope and conduct merits review of any non-waived issues.
Revocation findings and the record. District courts should ensure that violation findings rest on a developed factual record (e.g., supervision reports, lab results, admissions, and testimony), mindful that appellate review for clear error focuses on whether evidence is “plausible in light of the record viewed in its entirety.”
Sentencing on revocation. Although not reviewed here because of the waiver, the panel recited that the advisory policy range under Chapter 7 (8–14 months) and the statutory maximum (24 months) were considered, and the court imposed the maximum. Practitioners should remember that revocation sentences must be grounded in 18 U.S.C. § 3583(e) and the pertinent § 3553(a) factors; variance above the Chapter 7 range is permissible if adequately justified.
Government waiver enforcement. The decision underscores that the government must raise and seek enforcement of a waiver; failing to do so can forfeit the issue. A motion to enforce suffices (as in this case), even where no merits response is filed.

Complex Concepts Simplified

Anders procedure: When defense counsel believes an appeal lacks any nonfrivolous issues, he files an Anders brief flagging anything arguably supportive. The defendant is notified and may respond. The appellate court then independently reviews the entire record to confirm frivolity before permitting counsel to withdraw and dismissing the appeal.
Appeal waivers in plea agreements: Defendants often waive some appellate rights as part of a plea. Courts enforce these waivers if they clearly cover the issues raised, were entered knowingly and voluntarily, and enforcement will not produce a miscarriage of justice. Ambiguous waiver terms are construed narrowly, usually against the government.
Scope: “Sentence” versus “revocation decision”: A waiver of the right to appeal a “sentence imposed upon a revocation” blocks arguments about the length or legality of the imprisonment term imposed after revocation. It does not, without more, bar a challenge to the underlying decision that the defendant violated conditions and should be revoked.
Standard of review—clear error: Appellate courts defer to district-court factual findings unless firmly convinced a mistake was made. If the record’s evidence plausibly supports the finding (e.g., missed tests, noncompliance with treatment, drug use), the finding stands.
Supervised release revocation basics: If a judge finds by a preponderance of the evidence that a defendant violated conditions, the court may revoke supervision and impose imprisonment subject to statutory caps (18 U.S.C. § 3583(e)(3)). The Sentencing Guidelines’ Chapter 7 policy statements provide advisory ranges; courts must consider relevant § 3553(a) factors, but have discretion to vary.
Miscarriage-of-justice exceptions to waiver enforcement: In the Tenth Circuit, these are narrow: race-based sentencing, ineffective assistance rendering the waiver invalid, a sentence above the statutory maximum, or an otherwise unlawful waiver.

Conclusion

United States v. Mansker sharpens the Tenth Circuit’s already well-developed waiver jurisprudence in the supervised-release context: a plea agreement waiving the right to appeal a “sentence imposed upon a revocation of supervised release” does not, without more, bar an appeal challenging the revocation decision itself. Applying Hahn, Wilken, and Loumoli, the panel construed the waiver narrowly and then, consistent with Anders, independently reviewed the record to confirm that no nonfrivolous challenge existed either to revocation (outside the waiver) or to the sentence (inside the waiver). The court’s dismissal thus rests on both waiver enforcement and the absence of meritorious issues.

Practically, the opinion offers a clear drafting lesson: to foreclose appeals from revocation decisions, prosecutors must expressly say so in the waiver. For defense counsel and district courts, it underscores the importance of discrete analysis of (1) waiver scope and (2) the evidentiary support for revocation findings, even in Anders cases. Though nonprecedential, the decision is a useful, persuasive roadmap for future revocation appeals involving plea waivers in the Tenth Circuit.