Written Plea Terms Control Appeal-Waiver Exceptions for Sentences Above an Agreed Range

1. Introduction

In United States v. Roberts, the Tenth Circuit considered whether a defendant could avoid an appeal waiver by arguing that the sentencing court’s refusal to adjust his sentence for earlier custody effectively increased his punishment beyond the range specified in his plea agreement.

Robert Roberts pleaded guilty to being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1). His agreement with the United States specified a sentencing range of 37 to 46 months under Federal Rule of Criminal Procedure 11(c)(1)(C). It also broadly waived appellate and collateral challenges, while preserving an exception for a sentence exceeding the parties’ recommended range.

The district court imposed 42 months. Roberts nevertheless argued that the sentence exceeded the bargain “in substance” because the court declined to adjust it for approximately 21 months he had already spent in custody under a federal writ. The appellate court rejected that interpretation: the written agreement promised a sentencing range, not an additional custody adjustment, and oral sentencing discussions could not alter its integrated terms.

The decision illustrates an important distinction between a challenge to sentencing correctness and a challenge to the enforceability of an appeal waiver. The court resolved the latter without deciding the former.

2. Background and Procedural Setting

Custody and the federal prosecution

When federally indicted, Roberts was already in state custody on state charges. Federal authorities obtained a writ of habeas corpus ad prosequendum to secure his appearance in the federal prosecution. He spent approximately 21 months in federal physical custody under that writ before sentencing, while technically remaining in the state’s primary custody.

This arrangement created the sentencing concern underlying the appeal. Defense counsel maintained that the Bureau of Prisons would not credit that period toward Roberts’s federal sentence and that an adjustment under Sentencing Guidelines § 5G1.3 was necessary to make the federal sentence “truly concurrent” with a state sentence.

The written plea agreement

The agreement contained three provisions central to the court’s analysis:

• A specified sentencing range: 37 to 46 months under Rule 11(c)(1)(C), binding on the district court once it accepted the agreement.
• A broad appeal waiver: Roberts waived challenges concerning, among other matters, the components of his sentence, subject to specified exceptions, including a sentence exceeding the parties’ recommendation.
• An integration clause: The agreement embodied every term of the bargain unless subsequently supplemented in writing with both parties’ approval.

The agreement did not promise credit or an adjustment for the time Roberts had spent in custody under the writ.

Sentencing and appeal

At sentencing, the parties appeared to agree that Roberts’s federal sentence should run concurrently with any sentence imposed on the pending state charges. Defense counsel additionally sought an adjustment under § 5G1.3. The district court ordered concurrency but declined the adjustment and imposed 42 months.

After Roberts appealed, the government moved to enforce the waiver. Roberts principally argued that his appeal fell outside its scope and alternatively maintained that enforcement would cause a miscarriage of justice.

3. Summary of the Opinion

The Tenth Circuit enforced the waiver for four principal reasons:

1. The sentence fell within the written range. Forty-two months was within the agreed 37-to-46-month range, so the exception for an excessive sentence did not apply.
2. The agreement contained no promised custody adjustment. Roberts’s interpretation would effectively substitute a range of 16 to 25 months after subtracting 21 months from the written range.
3. The sentencing discussions did not modify the bargain. The integration clause required a jointly approved written supplement, not an oral alteration.
4. Alleged sentencing error did not establish an unlawful waiver. Roberts’s claim that § 5G1.3 required an adjustment concerned the sentence’s correctness, not the waiver’s legality.

The court therefore dismissed the appeal without deciding whether the district court correctly applied § 5G1.3.

4. Analysis: Precedents Cited

United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004)

United States v. Hahn supplied the controlling framework for assessing the government’s enforcement motion. It requires consideration of:

1. Whether the appeal falls within the waiver’s scope;
2. Whether the defendant knowingly and voluntarily waived appellate rights; and
3. Whether enforcement would result in a miscarriage of justice.

The opinion’s substantive analysis concentrated on the first and third inquiries because those were Roberts’s grounds of opposition. On scope, the court compared the sentence imposed with the written agreement. On miscarriage of justice, it examined Roberts’s contention that the waiver was “otherwise unlawful.”

The record also supported knowing and voluntary acceptance. Roberts acknowledged that he had read and understood the agreement and had not acted under threats, duress, or coercion. At the plea hearing, the district court confirmed his voluntary decision and his understanding that he was relinquishing rights to challenge his sentence. The opinion identifies no separate developed challenge to that aspect of the waiver.

United States v. Ray, 899 F.3d 852 (10th Cir. 2018)

United States v. Ray was cited to explain a writ of habeas corpus ad prosequendum: a federal court order requiring a state to produce a state prisoner for federal criminal proceedings.

Its role was explanatory rather than dispositive. The citation clarified why Roberts could be physically held by federal authorities while remaining in the state’s primary custody. It did not establish his entitlement to sentence credit, resolve the Bureau of Prisons’ treatment of the custody period, or determine whether § 5G1.3 required an adjustment.

United States v. Montano, 472 F.3d 1202 (10th Cir. 2007)

United States v. Montano supported the court’s refusal to treat sentencing discussions as an amendment to the plea agreement. The opinion quoted its rule that an “oral alteration of a portion of a plea agreement during sentencing does not replace a written provision in the agreement.”

This authority mattered because Roberts relied partly on the parties’ sentencing positions to explain what their recommendation supposedly meant. The court reasoned that even if those discussions showed a new understanding, they could not override an integration clause requiring a jointly approved written supplement.

The application is tied to the agreement’s actual language. The decision does not declare that every plea agreement must contain an integration clause or resolve how a differently worded agreement would operate.

United States v. Smith, 500 F.3d 1206 (10th Cir. 2007)

United States v. Smith supplied the central distinction governing Roberts’s miscarriage-of-justice argument: courts ask whether “the waiver is otherwise unlawful,” not whether some other aspect of the proceedings involved legal error.

Roberts argued that the district court wrongly denied the § 5G1.3 adjustment. Under Smith, that assertion did not itself establish a defect in his waiver. The distinction preserves the practical function of appeal waivers; otherwise, an allegation of sentencing error could routinely reopen the very appellate review the defendant relinquished.

The court did not hold that sentencing mistakes can never matter to waiver enforcement. It held that this alleged mistake did not demonstrate that this waiver was otherwise unlawful.

Hunter v. United States, 608 U.S. 713 (2026)

In a footnote, the court acknowledged that Hunter v. United States had recently approved the majority appellate view that a waiver is unenforceable when enforcement would result in a miscarriage of justice and had provided further guidance concerning that exception.

However, Roberts relied solely on Hahn, and the panel expressly declined to address Hunter. Accordingly, this order should not be read as an interpretation or limitation of that Supreme Court decision. The relationship between its additional guidance and the particular circumstances here remained unexamined.

5. Analysis: Legal Reasoning

The written recommendation defined the exception

The decisive interpretive question was what counted as a sentence “in excess of” the parties’ recommendation. Roberts focused on the practical consequences of receiving no adjustment. The court focused on the recommendation actually recorded in the agreement: 37 to 46 months.

Because the agreement said nothing about reducing that range by time already spent in custody, the court rejected an interpretation that would effectively turn it into 16 to 25 months. A concern about the sentence’s practical duration could not supply an omitted contractual term.

The defense’s own submissions supported that reading

Roberts argued that he reasonably understood the agreed range to require the adjustment. But his sentencing memorandum requested 37 months as the low end of the plea-agreement range and separately requested an adjustment for 21 months and 15 days. His counsel similarly endorsed the 37-to-46-month range while arguing that Roberts should “also get an adjustment.”

The court treated those formulations as evidence that the range and the adjustment were distinct requests. They undermined the claim that the written range itself necessarily incorporated the requested reduction.

Concurrency was not an express promise of retrospective adjustment

The district court ordered the federal sentence to run concurrently with any sentence on the pending state charges. Roberts nevertheless wanted an additional adjustment to account for custody preceding federal sentencing.

Those are related but distinct sentencing matters. Concurrent sentences overlap in their operation; that does not, without more, establish how earlier custody must affect the federal term. Here, the agreement’s silence about an adjustment prevented Roberts from treating the request as part of the exception to his waiver.

The court resolved only that agreement-based question. It did not determine whether concurrency alone adequately addressed his custody history under the Guidelines.

The miscarriage-of-justice argument did not supply an independent basis for review

Roberts first claimed that enforcement would deprive him of the benefit of his bargain. The court viewed this as a repetition of his unsuccessful scope argument: the documented bargain specified 37 to 46 months, and he received 42.

His second contention—that the district court committed a Guidelines error—failed under the distinction drawn in United States v. Smith. An alleged error in imposing a sentence does not, by itself, establish that the waiver of appellate review is unlawful.

6. Potential Impact and Practical Significance

• Precision in plea drafting: If a custody adjustment is essential to the bargain, counsel should address it expressly rather than assume that a stated range or recommendation of concurrency incorporates it.
• Written amendments matter: Where an agreement requires jointly approved written supplementation, sentencing discussions cannot safely substitute for that procedure.
• Appeal exceptions remain text-dependent: A sentence’s practical consequences do not necessarily place it outside a waiver when its stated term falls within the agreed range.
• Waiver challenges require a distinct analysis: Counsel must explain why the waiver is unenforceable, rather than merely identify the sentencing issue they wish to appeal.
• Preservation of arguments matters: The panel’s decision not to address Hunter v. United States underscores the importance of developing arguments under relevant intervening authority.

The decision’s reach is limited. It does not decide the proper application of § 5G1.3, establish Roberts’s entitlement to administrative custody credit, resolve a differently drafted plea agreement, or adjudicate every possible collateral challenge. Its immediate persuasive value concerns enforcement of the particular written waiver before the court.

7. Complex Concepts Simplified

Rule 11(c)(1)(C) agreement

A plea agreement specifying a sentence or sentencing range that becomes binding on the court once the court accepts the agreement.

Appeal waiver

A defendant’s agreement to relinquish specified rights to challenge a conviction or sentence. Its scope and enforceability remain subject to judicial review.

Integration clause

A provision identifying the written agreement as the complete bargain. Here, additional terms required a written supplement jointly approved by the parties.

Habeas corpus ad prosequendum

A writ securing a prisoner’s presence for prosecution in another jurisdiction. Physical transfer does not necessarily transfer primary custody.

Concurrent sentence

A sentence that runs alongside another sentence rather than entirely after it. It does not automatically settle the treatment of custody occurring before sentencing.

Sentence adjustment and custody credit

A sentencing adjustment changes the term imposed by the court; administrative credit concerns how prior custody counts toward serving that term. Roberts sought an adjustment because counsel anticipated that administrative credit would not be available.

Miscarriage-of-justice exception

A safeguard permitting nonenforcement of an appeal waiver in qualifying circumstances. Under the analysis applied here, alleging a sentencing error did not itself establish that the waiver was unlawful.

8. Conclusion

United States v. Roberts reinforces the importance of the written plea bargain. A 42-month sentence fell within the agreed 37-to-46-month range, and an unpromised custody adjustment could not be imported into the agreement through sentencing advocacy or oral discussion.

The broader lesson is that sentencing merits and waiver enforceability are separate questions. Although nonprecedential, the order provides a clear example of how an integrated plea agreement can foreclose appellate review without resolving whether the underlying sentencing decision was correct.