Tactical Waiver of Post-Plea Challenges Based on Intervening Precedent Bars Appellate Review

1. Introduction

United States v. Ray is a Second Circuit summary order issued on May 16, 2025. The appellant, Franklin Ray, pleaded guilty to multiple counts of wire fraud and aggravated identity theft under 18 U.S.C. §§ 1343, 1028A. After his plea but before sentencing, the Supreme Court decided Dubin v. United States, 599 U.S. 110 (2023), which narrowed the scope of aggravated identity theft (§ 1028A). Ray argued that his guilty plea lacked a sufficient factual basis under the Dubin standard and sought to vacate his conviction on Count Five. Six days later, he withdrew that request in order to preserve the benefits of his plea agreement. The Second Circuit held that Ray’s deliberate decision to abandon his Dubin-based argument constituted a waiver—thus precluding any appellate review of his Rule 11 and due process claims.

2. Summary of the Judgment

The Court of Appeals affirmed the district court’s judgment of conviction. It ruled that:

Ray challenged only Count Five (aggravated identity theft) on appeal, invoking Dubin.
Because Ray initially asked the district court to vacate his conviction under Dubin and then explicitly withdrew that request, he intentionally relinquished his right to pursue the argument.
That relinquishment amounted to a waiver, not mere forfeiture, and thus extinguished his appellate claim.
Waiver cannot be revived on plain‐error review, so the court had no basis to consider Ray’s Dubin argument or any Rule 11 error.
Accordingly, the convictions and sentence were affirmed in full.

3. Analysis

3.1 Precedents Cited

Dubin v. United States, 599 U.S. 110 (2023): Held that § 1028A aggravated identity theft requires using another’s identity to be “at the crux” of the fraudulent scheme, not merely incidental.
United States v. Olano, 507 U.S. 725 (1993): Defined waiver as the “intentional relinquishment or abandonment of a known right.”
United States v. Spruill, 808 F.3d 585 (2d Cir. 2015): Distinguished forfeiture (failure to object) from waiver (intentional relinquishment) and confirmed that waiver bars appellate plain‐error review.
Doe v. Trump Corp., 6 F.4th 400 (2d Cir. 2021): Clarified that forfeiture can be reviewed for plain error but waiver cannot.
United States v. Quinones, 511 F.3d 289 (2d Cir. 2007): Held that a party cannot complain on appeal of errors it invited for tactical benefit.
United States v. Mezzanatto, 513 U.S. 196 (1995): Acknowledged that some waivers might be unenforceable in a “complete miscarriage of justice,” but only in rare cases.
Additional authorities on waiver vs. forfeiture: Berghuis v. Thompkins, 560 U.S. 370 (2010); New York v. Hill, 528 U.S. 110 (2000); United States v. Plitman, 194 F.3d 59 (2d Cir. 1999); United States v. Yu-Leung, 51 F.3d 1116 (2d Cir. 1995).

3.2 Legal Reasoning

The court’s reasoning unfolds in several steps:

Distinguishing Waiver from Forfeiture:
- Forfeiture occurs when a defendant fails to raise an objection (often by oversight).
- Waiver is an intentional, knowing abandonment of a right.
Intentional Relinquishment:
- Ray initially moved to vacate his § 1028A conviction under Dubin.
- Six days later, he “clarified” that he was not seeking withdrawal of Count Five and reaffirmed guilt.
- This back‐and‐forth was a conscious strategic choice to retain the benefits of the plea agreement (avoiding potential consecutive aggravated identity theft sentences).
Waiver Bars Appellate Review:
- Under Olano and Spruill, waiver cannot be undone by invoking plain error.
- Because Ray intentionally abandoned the Dubin claim, he waived any Rule 11 or due process challenge tied to that claim.
Counsel’s Authority to Waive:
- Strategic, tactical decisions (such as whether to pursue a post‐plea challenge) may be made by counsel without requiring a separate on-the-record personal waiver.

3.3 Impact

This decision carries significant implications:

Plea Strategy and Post-Plea Challenges: Defendants and counsel must carefully weigh whether to invoke newly issued precedents before sentencing. A tactical withdrawal of a challenge cannot be resurrected on appeal.
Waiver Doctrine Clarified: Reinforces that an intentional choice to abandon known rights is irrevocable, even if subsequent decisions might appear to warrant relief.
Counsel’s Role: Confirms that counsel may strategically waive certain rights without individualized on-the-record waivers, subject to later review under ineffective assistance of counsel standards.
Limits on “Crux” Challenges: Post-Dubin § 1028A challenges depend not only on statutory interpretation but also on tactical decisions; defendants cannot game the system by shadow-arguing new precedent while preserving plea benefits.

4. Complex Concepts Simplified

Forfeiture vs. Waiver:
- Forfeiture – forgetting or failing to object; can be reviewed for plain error.
- Waiver – knowingly giving up a right; can never be reviewed on appeal.
Rule 11 (Federal Rules of Criminal Procedure): Governs acceptance of guilty pleas. A plea must be knowing, voluntary, and supported by a factual basis.
Dubin’s “Crux” Requirement: A § 1028A aggravated identity theft conviction requires that the use of another’s identifying information be integral to the fraud, not merely incidental.
Allocution: The defendant’s sworn statement in court describing the factual basis for the plea.
Plain Error Review: A limited appellate review where an unpreserved error is so obvious that it must be corrected to prevent miscarriage of justice.

5. Conclusion

United States v. Ray underscores the binding nature of tactical decisions in plea proceedings. A deliberate waiver of appellate rights—even in the face of newly announced favorable precedent—cannot be undone on appeal. By distinguishing waiver from forfeiture, the Second Circuit reaffirms that strategic choices made by defendants and counsel during plea and sentencing stages are final. This ruling serves as a cautionary lesson: when post-plea developments occur, parties must decide promptly whether to invoke them, since an intentional abandonment of such claims is irretrievable on appeal.