United States v. Kimble: Written Plea Agreements Can Sustain Appellate-Waiver Enforcement Despite a Missing Rule 11 Transcript

Introduction

In United States v. Kimble (10th Cir. Jan. 23, 2026) (unpublished order and judgment), the Tenth Circuit dismissed Darrin Renay Kimble’s sentencing appeal based on an appellate-rights waiver contained in his plea agreement. Kimble had pleaded guilty to robbery in Indian Country under 18 U.S.C. §§ 2111, 1151, 1153, in exchange for dismissal of two counts of assault with a dangerous weapon with intent to do bodily harm in Indian Country (18 U.S.C. §§ 113(a)(3), 1151, 1153).

The practical problem driving the appeal was procedural rather than substantive: a “technical error” meant the change-of-plea (Rule 11) hearing transcript was unavailable. Kimble nonetheless sought appellate review of a Guideline enhancement dispute—whether he “brandished” a knife (U.S.S.G. § 2B3.1(b)(2)(E)) or “otherwise used” it (U.S.S.G. § 2B3.1(b)(2)(D)). The Tenth Circuit did not reach the Guideline merits because it enforced the waiver.

Summary of the Opinion

Applying the Tenth Circuit’s waiver-enforcement framework, the court held the appeal must be dismissed because:

  1. Kimble conceded his appeal fell within the scope of the appellate waiver.
  2. The waiver was entered knowingly and voluntarily, notwithstanding the missing Rule 11 transcript, because the written plea agreement was explicit and Kimble offered no contrary record evidence.
  3. Enforcing the waiver would not cause a miscarriage of justice because Kimble challenged only alleged sentencing error, not the lawfulness of the waiver itself.

Analysis

Precedents Cited

  • United States v. Ibarra-Coronel, 517 F.3d 1218 (10th Cir. 2008): Cited for the standard of review—enforceability of an appeal waiver is reviewed de novo. This frames waiver enforcement as a legal question, not a discretionary call.
  • United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc) (per curiam): Provided the controlling three-part test: (1) scope, (2) knowing and voluntary, and (3) miscarriage of justice. Kimble’s concession on scope narrowed the appellate inquiry to the remaining two factors.
  • United States v. Anderson, 374 F.3d 955 (10th Cir. 2004): Assigned the burden to the defendant to show lack of knowledge/voluntariness or miscarriage of justice. The panel used this burden allocation to emphasize that a missing transcript does not, by itself, carry Kimble’s burden.
  • United States v. Atterberry, 144 F.3d 1299 (10th Cir. 1998): Central to the missing-transcript issue. The panel relied on Atterberry to reaffirm that, absent record indications of involuntariness, the written plea agreement may suffice to prove a knowing and voluntary waiver even without a plea transcript.
  • United States v. Tanner, 721 F.3d 1231 (10th Cir. 2013): Reinforced Atterberry by stating that “express language” in a plea agreement, if “sufficiently clear, detailed, and comprehensive,” can be enough to conclude the waiver was knowing and voluntary—supporting enforcement based primarily on the text of Kimble’s agreement.
  • United States v. Sandoval, 477 F.3d 1204 (10th Cir. 2007): Supplied the narrow definition of “miscarriage of justice” and, critically, the limitation that the “otherwise unlawful” inquiry targets the waiver’s lawfulness, not the sentence’s lawfulness. This foreclosed Kimble’s attempt to repackage a sentencing dispute as a waiver defect.
  • United States v. Smith, 500 F.3d 1206 (10th Cir. 2007): Applied to reject the notion that alleged Guideline-calculation errors can render a waiver “unlawful.” The panel invoked Smith’s policy logic: allowing sentencing-computation claims to defeat waivers would nullify waivers’ purpose.

Legal Reasoning

1) Knowing and voluntary waiver despite missing Rule 11 transcript

Under Hahn, the panel examined (a) the plea agreement’s language and (b) the existence/adequacy of a Rule 11 colloquy. The transcript’s absence could have created uncertainty about the colloquy. But the panel treated the transcript gap as non-dispositive under Atterberry and Tanner because:

  • The agreement expressly stated Kimble “knowingly and voluntarily” waived the right to appeal his conviction and sentence.
  • Kimble initialed each page and signed an acknowledgment that he “fully understand[s]” the agreement and “voluntarily agree[s] to it without reservation.”
  • Nothing else in the record indicated the waiver was unknowing or involuntary; at sentencing, defense counsel confirmed the government had accurately described the plea agreement, and the district court adopted it.

The burden principle from United States v. Anderson mattered: the missing transcript did not shift the burden to the government; Kimble still had to produce some affirmative indication of involuntariness, and he did not.

2) “Miscarriage of justice” is tightly confined to waiver defects, not sentencing disputes

Kimble tried to invoke the fourth Sandoval category—“the waiver is otherwise unlawful”—by arguing the district court inadequately examined facts in the PSR (i.e., a sentencing factfinding/process complaint tied to the knife enhancement).

The panel rejected this as a category mistake. Relying on Sandoval, it reiterated that the court asks whether the waiver itself is unlawful “because of some procedural error or because no waiver is possible,” not whether the underlying sentence contains error. And consistent with United States v. Smith, alleged Guideline-calculation errors do not invalidate a waiver, because that would allow defendants to evade waivers via the very appeals the waivers were meant to foreclose.

Because Kimble pointed to no defect in negotiating, executing, or accepting the waiver—only alleged sentencing error—he did not satisfy the miscarriage-of-justice exception.

Impact

Although designated non-precedential, United States v. Kimble is a clean application of existing Tenth Circuit doctrine with practical implications:

  • Record gaps at the plea stage are not automatically fatal to waiver enforcement. When a plea transcript is missing, the court may still enforce a waiver where the written agreement is explicit and the defendant provides no record-based reason to doubt voluntariness.
  • Sentencing-enhancement disputes remain squarely within the class of claims waivers are meant to bar. Even if framed as the district court “shirking” factfinding duties, the claim is treated as an attack on the sentence, not the waiver, and is therefore waived.
  • Litigation incentives shift toward waiver-focused challenges. Future appellants seeking to avoid dismissal must target waiver validity (e.g., coercion, misunderstanding, ineffective assistance in negotiation), rather than simply alleging guideline or PSR errors.

Complex Concepts Simplified

  • Appellate waiver: A clause in a plea agreement where the defendant gives up (waives) the right to appeal certain issues—often including sentencing issues—in exchange for concessions from the government (e.g., dismissing charges).
  • Rule 11 colloquy: The in-court plea hearing where the judge ensures the defendant understands the plea and its consequences. A transcript usually documents this; here, it was unavailable.
  • Hahn framework: The Tenth Circuit’s three-part checklist for enforcing appeal waivers: scope, knowing/voluntary, miscarriage of justice.
  • “Miscarriage of justice” (Sandoval): A narrow set of exceptions. Importantly, it is not a general “fairness” review of the sentence; it is focused on specific disqualifying problems (e.g., race-based sentencing, waiver-negotiation ineffectiveness, statutory-maximum issues, or waiver invalidity).
  • Guideline enhancement dispute (“brandished” vs. “otherwise used”): Sentencing Guidelines treat more aggressive weapon conduct as more serious. “Otherwise used” generally implies conduct more threatening than mere display. Kimble raised this merits issue, but the court did not reach it due to the waiver.

Conclusion

United States v. Kimble reaffirms two core waiver-enforcement principles in the Tenth Circuit: (1) a clear, signed written plea agreement can establish a knowing and voluntary appellate waiver even when the Rule 11 transcript is unavailable; and (2) alleged sentencing or Guideline errors—standing alone—do not fit the “miscarriage of justice” exception because the inquiry centers on the waiver’s validity, not the sentence’s correctness. The decision underscores that appellate waivers are treated as enforceable contractual commitments, and defendants are generally held to the bargains they strike.