United States v. Jason David, 36 F.4th 1214

Police arrested Jason David after finding him at a vehicle with a broken window; searches of his backpack and the vehicle yielded 251 pieces of stolen mail, multiple IDs, credit/debit cards, checks, and Social Security numbers.
David pleaded guilty to possession of stolen mail (18 U.S.C. § 1708) and possession of 15+ unauthorized access devices (18 U.S.C. § 1029(a)(3)) pursuant to a plea agreement that included an appellate-waiver provision.
The plea agreement and separate certifications stated David had read, discussed, and understood the agreement; his counsel likewise certified advising him of consequences.
At the change-of-plea hearing the court questioned David about reading and understanding the plea agreement, and David repeatedly affirmed he had and was satisfied with counsel; the court did not, however, explicitly address the appellate waiver to David personally as required by Rule 11(b)(1)(N).
The prosecutor mentioned the appellate-waiver pages near the end of the plea colloquy; no objections were raised. At sentencing the court applied a two-level USSG enhancement over David’s objection and imposed 36 months (variance below the Guidelines range).
David appealed his custodial sentence arguing the Rule 11(b)(1)(N) omission rendered his appellate waiver unenforceable and thus the court should review the sentencing claims on the merits.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Rule 11(b)(1)(N) noncompliance invalidates David’s appellate waiver	David: Court failed to address him personally about the appellate waiver, so waiver is unenforceable	Gov/District Court: Whole record (signed plea, certifications, colloquy, prosecutor’s remark) shows David understood waiver; no plain error	Waiver enforceable; Rule 11 omission was at most a technical error and did not affect substantial rights
Whether the district court’s application of the 2-level authentication-feature enhancement was reviewable	David: Government agreed to a particular base offense level; enhancement was improper	Gov: Waiver bars appellate review of sentencing challenges; factual record supports enhancement	Not reached on the merits because waiver is enforceable; appellate review of the enhancement denied
Whether plain-error standard is met for Rule 11(b)(1)(N) omission	David: The procedural omission alone suffices to overcome the waiver	Gov: To satisfy plain error David must show reasonable probability he would not have pled but for the omission; record refutes that	Plain-error standard not met; David did not show substantial rights were affected

United States v. King, 985 F.3d 702 (9th Cir. 2021) (Rule 11(b)(1)(N) requires informing defendant of appellate-waiver terms and determining understanding)
United States v. Ma, 290 F.3d 1002 (9th Cir. 2002) (when Rule 11(b)(1)(N) not complied with, court examines whole record for effect on substantial rights)
United States v. Myers, 804 F.3d 1246 (9th Cir. 2015) (plain-error elements and requirement of reasonable probability defendant would not have pled)
United States v. Arellano-Gallegos, 387 F.3d 794 (9th Cir. 2004) (absence of evidence defendant knew of waiver supports finding plain error)
United States v. Gonzalez-Melchor, 648 F.3d 959 (9th Cir. 2011) (appellate waivers generally preclude appellate review of covered issues)
United States v. Jimenez-Dominguez, 296 F.3d 863 (9th Cir. 2002) (technical Rule 11 violations may be excused where colloquy otherwise scrupulous)