United States v. Keith Atherton, 106 F.4th 888

Defendant Keith Atherton pleaded guilty to one count of using or attempting to use a minor to produce child pornography, pursuant to a plea agreement that included an appeal waiver, except in specific circumstances.
Investigations revealed Atherton possessed thousands of exploitative images, produced pornographic material involving a toddler in his care (MV1), and had a longstanding methamphetamine addiction.
Atherton received a 30-year statutory maximum sentence from the district court, with lifetime supervision upon release; the court cited high risk of recidivism and lack of adequate community-based resources.
Atherton appealed, arguing his sentence violated due process by being based on unreliable or false information about treatment efficacy, community resources, and possible extent of his offenses.
The government contended that Atherton’s due process argument was barred by his appeal waiver, except for constitutional challenges directly implicating the terms of his sentence under Ninth Circuit precedent.
The majority held the due process claim was not waived but found no due process violation; the dissent argued the waiver should have barred the appeal entirely.

Issue	Atherton's Argument	Government's Argument	Held
Does the appeal waiver bar due process challenges to sentencing?	Due process challenge fits within Wells exception to waiver; thus, not waived.	Only certain constitutional challenges (substantive, not procedural) survive waiver; this one does not.	Not waived—procedural due process challenge to sentencing can proceed under Wells.
Did the district court rely on false or unreliable information in sentencing?	Court relied on unfounded assumptions about treatment, resources, and additional offenses.	Court's statements were reasonable assessments, consistent with the record and expert testimony.	No due process violation; no reliance on patently false or unreliable information.
Was the defendant’s substantial rights affected by any error during sentencing?	Any such error (reliance on unreliable info) prejudiced Atherton's rights.	No clear or obvious error; no demonstrable reliance on unreliable information.	No plain error affecting substantial rights.
Should the appeal be dismissed per the terms of the plea agreement?	The constitutional challenge permits the appeal under Ninth Circuit precedent.	The waiver covered this issue and should bar the appeal entirely.	Appeal allowed under precedent; sentence affirmed on the merits.

United States v. Wells, 29 F.4th 580 (9th Cir. 2022) (defines scope of exceptions to appeal waivers for constitutional challenges to sentences)
United States v. Bibler, 495 F.3d 621 (9th Cir. 2007) (appeal waiver does not apply if the sentence is unlawful or unconstitutional)
United States v. Odachyan, 749 F.3d 798 (9th Cir. 2014) (due process and equal protection claims at sentencing not barred by appeal waiver)
United States v. Ornelas, 828 F.3d 1018 (9th Cir. 2016) (appeal waiver does not preclude certain constitutional sentencing challenges)
United States v. Tucker, 404 U.S. 443 (1972) (sentences founded on misinformation of constitutional magnitude violate due process)
United States v. Johnson, 979 F.3d 632 (9th Cir. 2020) (plain error review for unpreserved sentencing errors)