Rule 11(b)(1)(N) Satisfied Without On-the-Record Recital of Appeal‑Waiver Exceptions; Seriatim Advisements Not Required

Introduction

In United States v. Michael Osborn Thomas (No. 24-2052, 6th Cir. Oct. 20, 2025), the Sixth Circuit—by a published, per curiam opinion—affirmed a conviction and 300‑month sentence for a defendant who pled guilty to conspiracy to distribute methamphetamine. The appeal raised two core issues under Federal Rule of Criminal Procedure 11: (1) whether Rule 11 requires a district court to confirm a defendant’s understanding of each right waived one by one during the plea colloquy; and (2) whether Rule 11(b)(1)(N) is violated when the prosecutor, rather than the court, explains the appellate waiver and does so without enumerating its exceptions on the record. The court rejected both arguments on plain-error review and enforced the appeal waiver, foreclosing the defendant’s challenges to two sentencing enhancements.

Notably, Judge Kethledge wrote a separate concurrence urging the court to revisit en banc Sixth Circuit precedents that allow prosecutors to deliver the Rule 11(b)(1)(N) advisement. In his view, the Rule’s text—“the court must inform the defendant”—means just what it says: the judge, not the prosecutor, must personally deliver that advisement.

Summary of the Opinion

Facts and procedural posture: After a history of state drug convictions, release, and renewed trafficking, Thomas dispatched his sister to Detroit to procure several kilograms of methamphetamine. She was stopped by a Michigan trooper, the drugs were seized, and both were federally indicted. Both eventually pled guilty to conspiracy. At the plea hearing, the court advised Thomas of the rights he would waive and confirmed his understanding after describing them collectively. The prosecutor stated the plea included a “full appellate waiver” with exceptions “laid out in paragraph 13,” but did not list the exceptions. The court later accepted a plea agreement specifying a sentencing range of 120–360 months; although the guidelines advised life based on two enhancements, the court imposed 300 months, within the agreed range.
Issues on appeal: Thomas claimed Rule 11 error because (i) the court did not confirm separately, right-by-right, his understanding of each trial right he was waiving; and (ii) the court failed to comply with Rule 11(b)(1)(N) because the prosecutor (not the court) summarized the appellate waiver and did not describe its exceptions. He also challenged the two guideline enhancements.
Holdings:
- Rule 11 does not require a seriatim, right-by-right confirmation. Describing the rights collectively and confirming overall understanding suffices; therefore, no plain error.
- Rule 11(b)(1)(N) was not violated. Sixth Circuit precedent permits the prosecutor to explain the appellate waiver, and the record here showed Thomas was informed of and understood the waiver—even though the prosecutor did not enumerate the exceptions—because the written plea agreement contained them, Thomas reviewed it with counsel weeks earlier, counsel certified as much, and Thomas attested to understanding it in court.
- Because the appeal waiver was enforced, Thomas’s challenges to the guideline enhancements were barred.
Disposition: Judgment affirmed.

Analysis

Precedents Cited and Their Influence

United States v. Murdock, 398 F.3d 491 (6th Cir. 2005):
Murdock established that failure to mention an appellate waiver at all during the plea colloquy violates Rule 11(b)(1)(N). It also introduced the idea that a “functional substitute” could mitigate the effect of such an omission on the defendant’s substantial rights. In the present case, the court used Murdock chiefly for the standard of review (plain error) and to contrast adequate records (like Thomas’s) from those with “no functional substitute” for the court’s Rule 11 advisement.
United States v. Wilson, 438 F.3d 672 (6th Cir. 2006):
Wilson held that Rule 11(b)(1)(N) is not violated where the prosecutor, instead of the judge, explains the appellate waiver. That principle is central here: the panel reaffirmed that a prosecutor’s on-the-record summary can satisfy the Rule.
United States v. Sharp, 442 F.3d 946 (6th Cir. 2006):
Sharp refined Wilson by stating that the prosecutor’s explanation suffices so long as the court ascertains the defendant’s understanding. The panel applied that approach, looking to the written agreement, counsel’s certification, and Thomas’s own acknowledgments as evidence of understanding despite the omission of on-the-record exceptions.
United States v. Michael, 576 F.3d 323 (6th Cir. 2009):
Cited for the “obvious or clear” requirement under plain-error review. Even if one might prefer a more robust colloquy, the panel concluded no error—let alone a clear one—occurred given the record of understanding.
United States v. Presley, 18 F.4th 899 (6th Cir. 2021):
Applied for the straightforward proposition that an enforceable appellate waiver must be enforced. Here, once the court found no Rule 11(b)(1)(N) violation, the waiver barred Thomas’s sentencing claims.
United States v. Milliron, 984 F.3d 1188 (6th Cir. 2021):
Reinforces that issues within the scope of a valid appellate waiver (like challenges to guideline enhancements) are not reviewable.
In re National Prescription Opiate Litigation, 956 F.3d 838 (6th Cir. 2020):
Quoted in Judge Kethledge’s concurrence for the proposition that the Federal Rules “have fully the force of law,” underpinning his textual argument that Rule 11(b)(1)(N) requires the court—not the prosecutor—to inform the defendant.

Legal Reasoning

Plain-error framework governs unpreserved Rule 11 objections.
Because Thomas did not object at the plea hearing, he had to show an error that is plain, affects substantial rights, and seriously affects the fairness, integrity, or public reputation of judicial proceedings. The court resolved the first step against him, holding there was no error as to either asserted Rule 11 deficiency.
No seriatim advisement required by Rule 11(b)(1)(B)–(F).
The text of Rule 11 requires that the court inform the defendant of enumerated trial rights and determine that he understands them. The Rule does not dictate the format. The panel rejected a requirement that the court must pause after each right to secure an individualized confirmation. It sufficed that the court described the collective set of rights (jury trial, confrontation, etc.) and then confirmed Thomas’s understanding.
Rule 11(b)(1)(N) satisfied by prosecutor’s summary and record of understanding.
Relying on Wilson and Sharp, the court held that (a) a prosecutor’s summary of the waiver can satisfy Rule 11(b)(1)(N); and (b) the core question is the defendant’s understanding. Although the prosecutor referenced, but did not read, the waiver’s exceptions, the panel emphasized that Thomas:
- had the written plea agreement weeks before;
- discussed it with counsel, who certified that fact;
- attested in open court that he understood everything in the agreement and was not confused; and
- confirmed understanding after hearing the prosecutor’s summary.
Against that backdrop, any omission to list exceptions was not an “obvious or clear” error, defeating plain-error review.
Appeal waiver enforced, barring sentencing claims.
With no Rule 11(b)(1)(N) violation, the appellate waiver stood. The court therefore declined to entertain challenges to the two enhancements, citing Milliron.

Impact and Forward-Looking Implications

Operational latitude for district judges remains intact—at least for now.
District courts within the Sixth Circuit may continue to:
- conduct Rule 11 colloquies without a right-by-right, stop‑and‑confirm cadence; and
- allow prosecutors to summarize appeal waivers, so long as the court ascertains the defendant’s understanding based on the totality of the record (written agreement, counsel’s certification, defendant’s statements).
The present opinion goes a step further by tacitly approving a colloquy where the prosecutor did not enumerate the exceptions, provided the record otherwise demonstrates understanding. That is an incremental clarification that omission of on‑the‑record exceptions, without more, does not constitute plain error.
Strengthened enforceability of appeal waivers.
The decision underscores that appellate waivers will be enforced where the record shows knowing and voluntary assent, even if the on‑the‑record description was concise. Defendants who do not contemporaneously object face an uphill battle on plain error.
But a serious textual challenge looms.
Judge Kethledge’s concurrence squarely attacks the foundation of Wilson and Sharp. He argues Rule 11(b)(1)(N) is explicit that “the court must inform the defendant,” and that allowing the prosecutor to do so “rewrites” the Rule. He also highlights practical reasons: the judge’s neutrality, the defendant’s likely attentiveness to the judge, and the risk of “formalities” erosion. This is a clear invitation for en banc reconsideration. If the Sixth Circuit grants such review, district courts might soon be required personally to deliver the appellate‑waiver advisement and perhaps to enumerate exceptions expressly.
Potential circuit alignment or conflict.
Other circuits have taken varied approaches to how strictly Rule 11(b)(1)(N) must be implemented on the record. The concurrence’s textualist critique could spur renewed scrutiny across circuits. If a split ripens (e.g., between circuits requiring direct judicial advisement versus those approving prosecutorial explanations), the issue could attract en banc or even Supreme Court attention.
Plea agreements specifying a sentencing range.
The court accepted a plea agreement guaranteeing a 120–360‑month range and imposed a 300‑month sentence notwithstanding a guideline calculation of life. Although the panel did not analyze Rule 11(c)(1)(C), the practical lesson is that binding range agreements can cabin sentencing exposure—and, when paired with appellate waivers, can greatly limit appellate recourse.

Complex Concepts Simplified

Rule 11 colloquy: A scripted conversation between the judge and the defendant at the plea hearing to make sure the plea is knowing, voluntary, and supported by a factual basis, and that the defendant understands the rights he gives up by pleading guilty.
Seriatim advisement: Confirming understanding of each right one by one, in sequence. This opinion confirms it is not required; the judge may describe the rights together and confirm overall understanding.
Rule 11(b)(1)(N): Requires that, before accepting a plea, the court inform the defendant of any plea‑agreement provision waiving the right to appeal or collaterally attack the sentence, and determine that he understands it.
Appeal waiver: A clause in a plea agreement where a defendant agrees not to appeal the conviction or sentence, often with limited exceptions (e.g., illegal sentence, sentence above an agreed cap, ineffective assistance, or prosecutorial misconduct).
Plain error review: When a defendant did not object in the trial court, an appellate court will correct only (1) an error, (2) that is clear or obvious, (3) that affected substantial rights (usually outcome), and (4) that seriously affects the fairness, integrity, or public reputation of judicial proceedings. Failure at any step defeats relief.
Per curiam opinion: An unsigned opinion of the court as an institution, rather than authored by a single judge.
Concurring opinion: A separate opinion that agrees with the result but offers different reasoning or commentary. Here, Judge Kethledge agrees with the outcome but disputes the correctness of existing circuit precedent on Rule 11(b)(1)(N).
“Recommended for publication”: Signals precedential effect within the circuit; the opinion is intended to guide future cases.

Practical Guidance

For District Judges

Personally describe the appellate waiver and its exceptions, even though current Sixth Circuit precedent permits prosecutor summaries; this preserves the record and anticipates potential en banc changes.
Ask open‑ended questions that elicit the defendant’s explanation of the waiver in his own words.
Consider reading or summarizing the exceptions on the record and confirming the defendant reviewed them with counsel.
Although not required, a brief, right‑by‑right confirmation can reduce appellate risk and streamline the record.

For Defense Counsel

Review the appellate‑waiver provision and exceptions line‑by‑line with the client well before the plea hearing; document that review.
Ensure the client can articulate the waiver and exceptions; invite the court to canvass them if the prosecutor’s summary is cursory.
Preserve objections during the colloquy if the Rule 11 advisements are incomplete; preservation avoids the stringent plain‑error standard.

For Prosecutors

If asked to summarize the appellate waiver, include its principal exceptions on the record to avoid later claims of inadequate advisement.
Provide the plea agreement to the defense with ample lead time; contemporaneously build a record that the defendant read and discussed it.
When feasible, propose that the court itself deliver the Rule 11(b)(1)(N) advisement to fortify the record against future en banc or Supreme Court shifts.

Key Takeaways

Rule 11 does not require a step‑by‑step, right‑by‑right confirmation during the plea colloquy; a collective advisement with confirmation of understanding is sufficient.
Within the Sixth Circuit, Rule 11(b)(1)(N) is satisfied when the record shows the defendant was informed of and understood the appellate waiver—even if the prosecutor, not the court, summarized it and did not list the exceptions, provided the written agreement and the defendant’s acknowledgments demonstrate understanding.
Enforceable appellate waivers will bar guideline and other sentencing challenges within their scope.
A significant concurrence calls for en banc reconsideration of the practice of allowing prosecutors to deliver the Rule 11(b)(1)(N) advisement, grounding the argument in the Rule’s plain text and the institutional role of the judge. Courts and counsel should anticipate possible doctrinal tightening.

Conclusion

United States v. Thomas offers a concise but consequential reaffirmation of Sixth Circuit doctrine on Rule 11 practice and appellate waivers. The court confirms that a non‑seriatim advisement of trial rights is adequate and that a prosecutor’s summary of an appellate waiver—backed by a record showing the defendant’s understanding—satisfies Rule 11(b)(1)(N), even without an on‑the‑record recital of exceptions. Consequently, Thomas’s appellate waiver foreclosed his sentencing challenges, and the judgment was affirmed.

At the same time, Judge Kethledge’s concurrence squarely invites en banc reconsideration, contending that Sixth Circuit precedent “rewrites” Rule 11(b)(1)(N) by allowing the prosecutor to perform a task the Rule assigns to the judge. Whether the court will accept that invitation remains to be seen, but the signal is clear: best practice is for district judges to personally deliver the appellate‑waiver advisement—including its exceptions—on the record. Until any en banc course correction, however, Thomas cements the Sixth Circuit’s pragmatic focus on actual understanding over formal recitation, with robust consequences for the enforceability of appeal waivers.