CA1: Appeal waivers reviewed under plain error standard

US v. Borrero-Acevedo, No. 06-2655.  The First now says that plain error review applies to unpreserved claims of violations of Fed. R. Crim. P. 11(b)(1)(N) (waiving right to appeal).  So, now the defendant has to show “a reasonable probability that he would not have entered the plea had the error not been made.”  (Reasonable probability is somewhat less than “preponderance.”)  Applying United States v. Vonn, 535 U.S. 55 (2002) and United States v. Dominguez Benitez, 542 U.S. 74 (2004).  The First adds that in light of this rule the old rule in which the Court of Appeals had discretion to enforce an appeal waiver is sort of a moot point, because it probably would have declined to enforce such rules given any plain error.  It also adds that because the Supreme Court said that these agreements could be collaterally attacked, and therefore, at some point there might be some way to directly attack an appeal waiver.

Whatever the case, the First (thankfully) calling this a jurisdictional issue.

Oh, and the defendant loses.