Hunter v. United States

1
(Slip Opinion) OCTOBER TERM, 2025
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
HUNTER v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIFTH CIRCUIT
No. 24–1063. Argued March 3, 2026—Decided June 18, 2026
Petitioner Munson Hunter III was charged with 10 counts of bank and
wire fraud for a years-long scheme costing various financial institu-
tions about half a million dollars. He entered into a written plea agree-
ment with the Government under which he pleaded guilty to one count
of aiding and abetting wire fraud in exchange for dismissal of the re-
maining nine charges and a promise not to prosecute him for the de-
scribed conduct in the future. The agreement included an appeal
waiver under which Hunter waived the right to appeal his conviction
and sentence, except that he did not waive the right to raise a claim of
ineffective assistance of counsel. The agreement further provided that
“any modification” of its terms “must be in writing and signed by all
parties.” The District Court accepted the plea after deeming it know-
ing and voluntary.
At sentencing, the Probation Office recommended that as a condition
of supervised release Hunter be required to participate in a mental-
health treatment program and take all mental-health medications pre-
scribed by his treating physician. Hunter objected to the mandatory-
medication part of that condition. The District Court told Hunter that
if “the treatment provider prescribes drugs, you should take them,”
while also telling Hunter that he could “address” any future dispute
about medication “to the probation officer” or, if needed, “to me.” The
District Court then imposed a sentence of 51 months in prison followed
by three years of supervised release, including the contested medica-
tion condition. At the close of the hearing, the court told Hunter: “All
right. You have a right to appeal. If you wish to appeal, [your trial
counsel] will continue to represent you.” When asked if either party
wished to say anything else, Hunter’s lawyer said “Nothing from the
defense,” and the prosecutor replied: “Your Honor, I believe—well, no.

2 HUNTER v. UNITED STATES
Syllabus
I—no.”
Hunter appealed, challenging the mandatory-medication condition
as infringing on his “fundamental due process liberty interest in being
free of unwanted mental health medication.” The Government sought
dismissal based on the appeal waiver. Hunter acknowledged he had
knowingly and voluntarily signed the waiver but argued that an ap-
peal waiver is unenforceable when the disputed aspect of a sentence
violates a fundamental constitutional right, and alternatively that the
District Court’s statement at sentencing about appeal rights, along
with the prosecutor’s failure to object, voided the waiver. The Court of
Appeals for the Fifth Circuit dismissed the appeal, holding that the
District Court’s misstatement “did not impact the validity of the appeal
waiver” and that under Circuit precedent the “general rule” that ap-
peal waivers are enforceable has only two exceptions: when the waiver
was tainted by ineffective assistance of counsel and when the sentence
exceeded the statutory maximum. Because neither exception applied,
the Fifth Circuit held that Hunter’s appeal could not go forward.
Held: An agreement not to appeal a sentence is unenforceable when it
would result in a miscarriage of justice—meaning, when it would leave
in place the kind of egregious error that would bring the judicial sys-
tem into disrepute. Pp. 5–14.
(a) The District Court’s misstatement at sentencing and the Govern-
ment’s silence did not negate Hunter’s knowing and voluntary appeal
waiver. The plea agreement specified that “[a]ny modification” of its
terms “must be in writing and signed by all parties,” and even assum-
ing away that provision, nothing that happened in the sentencing
hearing shows the mutual agreement between parties needed to ac-
complish a modification. The court’s statement about appeal rights
could not change the parties’ agreement because it is the parties’ intent
that matters, and their non-response falls far short of showing agree-
ment to alter a conflicting term.
The Government did not waive or forfeit its right to enforce the ap-
peal waiver by failing to correct the court’s misstatement. Under ordi-
nary litigation principles, waiver requires some affirmative signal of
abandonment, and staying silent—as here, not picking a fight—does
not qualify. Forfeiture generally does happen through silence because
it is the failure to make the timely assertion of a right, but the proper
time for the Government to assert its right to enforce an appeal waiver
is after a defendant files a notice of appeal, not at sentencing. The
decision that Hunter’s appeal waiver remains valid matches one the
Court reached in a nearly mirror-image case, Class v. United States,
583 U. S. 174. Pp. 5–7.
(b) The question becomes whether the Government’s right to enforce
an appeal waiver has limits and, if so, what they are. It is common

3 Cite as: 608 U. S. ___ (2026)
Syllabus
ground that an appeal waiver must be knowing and voluntary to be
valid and thus to be enforceable, and that an appeal waiver is not
knowing and voluntary if it was the product of ineffective assistance of
counsel. Putting that to the side, the Fifth Circuit holds appeal waiv-
ers unenforceable only when the sentence exceeds the statutory maxi-
mum. The Government maintains that knowing and voluntary appeal
waivers are always enforceable. But most courts of appeals have in-
stead taken a less stringent approach, declining to enforce appeal
waivers when doing so would produce a “miscarriage of justice.” The
question for the Court is which position is right.
The answer stems from the special, and indeed pivotal, role of the
judiciary in approving and implementing appeal waivers. A district
court must accept the plea agreement, including any appeal waiver,
before it can go into effect, and that decision is one given over to “sound
judicial discretion.” Santobello v. New York, 404 U. S. 257, 261–262.
An appeal waiver then falls into the lap of a court of appeals, which
has exclusive control over its operation; the real-world effect of a
waiver turns only on whether the appeals court decides to enforce it,
and enforcement will cement into place a district court’s sentence
whether or not lawful. Because that is so, the standard for enforcing
appeal waivers implicates the interests not only of the plea agree-
ment’s parties, but also of the judiciary. If a court always enforces
appeal waivers regardless of the kind or degree of error tainting a sen-
tence, the judicial system’s integrity may come into question. The
Court has recognized when addressing waivers of other rights held by
criminal defendants that federal courts have an “independent” “insti-
tutional interest” in ensuring that legal proceedings “appear fair to all
who observe them,” Wheat v. United States, 486 U. S. 153, 160, and
that some rules may be “so fundamental” that they could not be waived
“without irreparably discrediting the federal courts,” United States v.
Mezzanatto, 513 U. S. 196, 204. Whatever the parties have agreed to,
the court’s own responsibility when enforcing a waiver is apparent,
and so automatic enforcement may “risk[ ] institutional harm.” Id., at
205.
Accordingly, neither the Government’s nor the Fifth Circuit’s pro-
posed rule can be the right one. The Government’s position first runs
into the scenario that even the Fifth Circuit will not tolerate: when a
judge imposes a sentence beyond what the relevant statute allows.
Suppose a judge sentences a misdemeanant to life in prison, when the
applicable law caps a prison term at one year; if an appellate court had
to dismiss the resulting appeal, it would call into doubt the judicial
system’s very attachment to law. But so too would a dismissal in cer-
tain other situations, which fall outside both the Government’s and the
Fifth Circuit’s rules—for example, if the sentencing judge

4 HUNTER v. UNITED STATES
Syllabus
unconstitutionally considered race or religion, imposed a condition
that a defendant not become pregnant, or “let an orangutan pick a sen-
tence out of a hat.” Tr. of Oral Arg. 66. However certain the parties’
agreement, the courts are too enmeshed in its approval and implemen-
tation to escape responsibility for such results. Pp. 7–11.
(c) The Court thus approves the majority view among the courts of
appeals that an appeal waiver is unenforceable when it would result
in a miscarriage of justice. The miscarriage-of-justice standard sets a
high bar. The waiver may be set aside only if the sentence is marred
by the kind of egregious error that would bring the judicial system into
disrepute. The error must be obvious—not one a judge could reasona-
bly make—and must be of the type that would undermine public con-
fidence in the judiciary. Standard-fare errors in misapplying sentenc-
ing law cannot cancel an appeal waiver. But a high bar is not the same
as an insurmountable one; the miscarriage-of-justice limit, as many
appellate courts have properly applied it, offers a safety valve for ex-
treme cases when the justice system’s basic integrity is at stake.
The nature of the miscarriage-of-justice limit precludes any attempt
to list all the situations in which it will overcome an appeal waiver.
But a few examples of the kinds of errors that would bring the judiciary
into disrepute may provide guidance to lower courts: a sentence ex-
ceeding what the relevant statute allows; a sentence infected with a
blatant constitutional error, such as when a judge takes account of a
constitutionally impermissible factor (like race) or imposes a constitu-
tionally infirm condition of supervised release; and a sentence imposed
without some minimum of civilized procedure. These examples are
just examples, not intended to be exclusive, but they serve to illustrate
the high bar a defendant must surmount to overcome an appeal
waiver.
The Court doubts that this confined exception will “open the flood-
gates” to “waived appeals.” Tr. of Oral Arg. 60, 87. Many Circuits
already apply a miscarriage-of-justice limit, and the Government has
offered no evidence those courts are awash with appeals. The Circuits
using this approach have understood it to erect a substantial barrier,
and such a hard-to-meet standard presumably deters many appeals
while those still filed can often be quickly dismissed because the errors
asserted are uncertain or ordinary. Pp. 11–13.
(d) The Court declines to decide in the first instance whether
Hunter’s challenge to the mandatory-medication condition satisfies
the miscarriage-of-justice standard. The Court of Appeals did not ad-
dress the question, and this Court is “a court of review, not of first
view,” Cutter v. Wilkinson, 544 U. S. 709, 718, n. 7. It is therefore up
to the Fifth Circuit to decide whether enforcing Hunter’s appeal waiver
would result in a miscarriage of justice. Pp. 13–14.

5 Cite as: 608 U. S. ___ (2026)
Syllabus
Vacated and remanded.
K
AGAN, J., delivered the opinion of the Court, in which ROBERTS, C. J.,
and A
LITO, SOTOMAYOR, GORSUCH, KAVANAUGH, BARRETT, and JACKSON,
JJ., joined. G
ORSUCH, J., filed a concurring opinion, in which SOTOMAYOR
and JACKSON, JJ., joined. KAVANAUGH, J., filed a concurring opinion, in
which A
LITO and BARRETT, JJ., joined. BARRETT, J., filed a concurring
opinion. THOMAS, J., filed a dissenting opinion.

_________________
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1 Cite as: 608 U. S. ____ (2026)
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
United States Reports. Readers are requested to notify the Reporter of
Decisions, Supreme Court of the United States, Washington, D. C. 20543,
pio@supremecourt.gov, of any typographical or other formal errors.
SUPREME COURT OF THE UNITED STATES
No. 24–1063
MUNSON P. HUNTER, III, PETITIONER v.
UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[June 18, 2026]
JUSTICE KAGAN delivered the opinion of the Court.
Plea agreements between a criminal defendant and the
Government often include an appeal waiver—a promise by
the defendant not to appeal his conviction or eventual sen-
tence. In this case, we address a dispute about when such
a promise is unenforceable in the sentencing context. We
principally hold that an agreement not to appeal a sentence
is unenforceable when it would result in a miscarriage of
justice—meaning, when it would leave in place the kind of
egregious error that would bring the judicial system into
disrepute.
I
Petitioner Munson Hunter III entered into a written plea
agreement with the Government after he was charged with
ten counts of bank and wire fraud for a years-long scheme
costing various financial institutions about half a million
dollars. Under the agreement, Hunter pleaded guilty to one
count of aiding and abetting wire fraud. In exchange, the
Government agreed to dismiss the other nine charges and
to refrain from prosecuting Hunter in the future for the con-
duct they described.

2 HUNTER v. UNITED STATES
Opinion of the Court
The agreement also included an appeal waiver, applying
to both Hunter’s conviction and his still-to-be-decided sen-
tence. Under that provision, Hunter “knowingly and volun-
tarily waive[d] the right to appeal” his conviction and sen-
tence, except that he did “not waive the right to raise a
claim of ineffective assistance of counsel.” App. to Pet. for
Cert. 6a. And with specific reference to his sentence,
Hunter acknowledged his “aware[ness]” of certain facts:
that the sentence had “not yet been determined” by the Dis-
trict Court; that the Government had made no “promise or
representation” about that sentence; and that the “sentence
to be imposed [was] within the sole discretion of the sen-
tencing judge.” Id., at 7a, 8a, 10a. The plea agreement fur-
ther specified what would happen if Hunter nonetheless ap-
pealed: The Government would “assert its rights under this
agreement and seek specific performance” of Hunter’s ap-
peal waiver. Id., at 7a. Finally, the agreement provided
that “[a]ny modification” of its terms—including of the ap-
peal waiver—“must be in writing and signed by all parties.”
Id., at 15a.
After the agreement was reached, the District Court held
a hearing to decide whether to accept Hunter’s plea. To en-
sure that Hunter fully grasped the consequences of the
agreement, the court went over each of its terms. Upon
reaching the appeal waiver, the court read it aloud, ex-
plained what it meant—among other things, that “[b]asi-
cally you’re agreeing to whatever sentence I impose”—and
asked Hunter whether he understood. App. 11. When
Hunter replied “Yes” to that and similar questions, the
court deemed the plea “knowing and voluntary,” adjudged
Hunter guilty of aiding and abetting wire fraud, and sched-
uled a sentencing hearing. Id., at 11, 14–15; see id., at 11–
15.
At that hearing, much of the discussion focused on a con-
dition of supervised release that the Probation Office rec-
ommended go into effect once Hunter completed his prison

3 Cite as: 608 U. S. ____ (2026)
Opinion of the Court
sentence. According to the Office’s presentence report,
Hunter “suffers from symptoms of anxiety and depression”
and “has refused medication to treat his symptoms.”
Presentence Report in No. 23–cr–85 (SD Tex.), ECF Doc. 125,
p. 19
. The report thus proposed that, while on supervised
release, Hunter be required to “participate in a mental-
health treatment program” and to “take all mental-health
medications that are prescribed by [his] treating physi-
cian.” Id., at 24. Hunter objected to the mandatory-medi-
cation part of that condition, saying that he should not “be
forced to medicate.” App. to Pet. for Cert. 24a. The judge
responded that if “the treatment provider prescribes drugs,
you should take them,” while also telling Hunter that he
could “address” any future dispute about medication “to the
probation officer” or, if needed, “to me.” Ibid.
The District Court later imposed its sentence and made
closing remarks, including a fairly inexplicable one at issue
here. Under the sentence, Hunter would have to serve 51
months in prison, followed by three years of supervised re-
lease. The release conditions would include the medication
requirement to which Hunter had objected. After specify-
ing those terms, the court granted the Government’s motion
to dismiss the remaining counts in the indictment, con-
firmed with Hunter’s lawyer that the Government had com-
plied with the plea agreement, and finally addressed
Hunter. The court said: “All right. You have a right to ap-
peal. If you wish to appeal, [your trial counsel] will con-
tinue to represent you.” Id., at 36a. Then turning back to
the lawyers, the court asked whether either “wish[ed] to say
anything else.” Ibid. Hunter’s lawyer answered: “Nothing
from the defense.” The prosecutor replied: “Your Honor, I
believe—well, no. I—no.” Ibid. And the hearing adjourned.
Hunter promptly appealed, challenging the mandatory-
medication condition. That condition, he argued, “in-
fringe[d] on [his] fundamental due process liberty interest
in being free of unwanted mental health medication.” Brief

4 HUNTER v. UNITED STATES
Opinion of the Court
for Appellant in No. 24–20211 (CA5), p. 9. The Government
sought dismissal, citing the appeal waiver in Hunter’s plea
agreement. Hunter acknowledged that he had knowingly
and voluntarily signed on to that provision, but urged two
reasons for still permitting the appeal to proceed. Most
broadly, he contended that an appeal waiver is unenforcea-
ble when the disputed aspect of a sentence “violates a fun-
damental constitutional right.” Ibid. In the alternative, he
asserted that the District Court’s representation at sen-
tencing that he had a right to appeal, along with the prose-
cutor’s failure to object, voided the appeal waiver he had
made. See id., at 8–9.
The Court of Appeals for the Fifth Circuit dismissed
Hunter’s appeal based on the waiver provision. The court
first concluded that the District Court’s misstatement at
sentencing “did not impact the validity of the appeal
waiver.” 2024 WL 5003582, *1 (Dec. 6, 2024) (per curiam).
And such a waiver, the court next held, controls even if the
District Court imposed an “unconstitutional sentence.”
Ibid. (citing United States v. Barnes, 953 F. 3d 383, 389
(CA5 2020)). Under Circuit precedent, the “general rule”
that appeal waivers are enforceable has “only two excep-
tions”: when the waiver itself was “tainted by ineffective as-
sistance of counsel” and when the challenged sentence “ex-
ceed[ed] the statutory maximum.” Id., at 388–389; United
States v. White, 307 F. 3d 336, 339 (CA5 2002). Because
neither exception applied, Hunter’s appeal could not go for-
ward.
We granted certiorari, 607 U. S. 961 (2025), because the
Courts of Appeals have differed on when appeal waivers are
unenforceable in the sentencing context. Most have held
that a waiver cannot be enforced if doing so would result in
a miscarriage of justice.
1
The Fifth Circuit and a few others
——————
1
See United States v. Boudreau, 58 F. 4th 26, 33 (CA1 2023); United
States v. Khattak, 273 F. 3d 557, 562 (CA3 2001); United States v. Smith,

5 Cite as: 608 U. S. ____ (2026)
Opinion of the Court
have declined that route, instead specifying just a few dis-
crete circumstances in which an appeal can occur despite a
waiver.
2
Today, we adopt the “miscarriage of justice” ap-
proach, and accordingly remand this case to the Fifth Cir-
cuit to consider whether, under that standard, Hunter’s ap-
peal should still be dismissed.
II
Before getting to that issue, though, we pause to address
the more case-specific argument Hunter makes for allowing
him to appeal: that at his sentencing hearing, the District
Court said he could, and the Government did not object. If
that alone were enough to negate a knowing and voluntary
appeal waiver, Hunter could bring his appeal regardless of
our resolution of the just-described Circuit split. But it is
not enough: Contrary to Hunter’s arguments, the court’s re-
mark did not modify the plea agreement, nor did the Gov-
ernment’s failure to object give up its ability to later enforce
the agreement’s terms.
First, the court’s statement about appeal rights could not
have “orally modified the plea agreement” between Hunter
and the Government. Brief for Hunter 12. That agreement,
as earlier noted, was specific about how modifications could
occur: only if “in writing and signed by all parties.” App. to
Pet. for Cert. 15a; see supra, at 2. And even assuming away
that provision, nothing that happened in the sentencing
hearing shows the mutual agreement between parties
——————
134 F. 4th 248, 261 (CA4 2025); United States v. Andis, 333 F. 3d 886,
891–892 (CA8 2003); United States v. Wells, 29 F. 4th 580, 583 (CA9
2022); United States v. Holzer, 32 F. 4th 875, 886 (CA10 2022); United
States v. Guillen, 561 F. 3d 527, 531–532 (CADC 2009); see also United
States v. Riggi, 649 F. 3d 143, 148 (CA2 2011) (adopting a differently
framed but substantively similar exception).
2
See United States v. Barnes, 953 F. 3d 383, 388–389 (CA5 2020); Por-
tis v. United States, 33 F. 4th 331, 339 (CA6 2022); United States v. Nulf,
978 F. 3d 504, 507 (CA7 2020); King v. United States, 41 F. 4th 1363,
1368, n. 3 (CA11 2022).

6 HUNTER v. UNITED STATES
Opinion of the Court
needed to accomplish a modification. See Hawkins v.
United States, 96 U. S. 689, 696 (1877) (“Mutual consent is
required to modify” an agreement). There was neither an
offer nor an acceptance by those parties, and so no conceiv-
able meeting of the minds. It seems unlikely that, as
Hunter urges, the court’s statement was meant to produce
a modification, see Brief for Hunter 42; far more likely,
given that the court did not refer to the parties’ bargain,
that its statement was merely a momentary mistake. But
whatever the court’s intent, its statement about appeal
rights could not change Hunter and the Government’s
agreement. For that purpose, it is the parties’ intent that
matters, and their non-response response to the judge’s rep-
resentation falls far short of showing that they agreed to
alter a conflicting term.
Second, the Government did not forever “relinquish[] its
appeal-waiver argument” by failing to correct the court’s
misstatement. Id., at 12. The prosecutor’s swallowed retort
at the hearing (“Your Honor, I believe—well, no. I—no”)
neither waived nor forfeited, as Hunter claims, the right to
seek future enforcement of Hunter’s agreement not to ap-
peal. See ibid. Under ordinary litigation principles, a
waiver of a right requires some affirmative signal of “aban-
donment.” United States v. Olano, 507 U. S. 725, 733
(1993). Staying silent—as here, not picking a fight—does
not qualify. By contrast, forfeiture generally does happen
through silence, because it “is the failure to make the timely
assertion of a right.” Ibid. But the proper time for the Gov-
ernment to assert its right to enforce an appeal waiver is
not at a sentencing hearing. Rather, it is after a defendant
has filed a notice of appeal. It is only then that the Govern-
ment can assess whether the appeal violates the agree-
ment’s terms and, even if so, whether to turn a blind eye.
See Garza v. Idaho, 586 U. S. 232, 238–239 (2019). So here,
the Government’s nonobjection during the sentencing pro-
ceeding was not a “failure to make the timely assertion” of

7 Cite as: 608 U. S. ____ (2026)
Opinion of the Court
its enforcement right. Olano, 507 U. S., at 733 (emphasis
added). That assertion—or its absence—would happen only
later on.
Our decision that Hunter’s appeal waiver remains valid
matches one we reached in a nearly mirror-image case. In
Class v. United States, 583 U. S. 174 (2018), the defendant’s
plea agreement did not include an appeal waiver, but dur-
ing the plea colloquy the District Court mistakenly stated
that the defendant was “giving up [his] right to appeal [his]
conviction.” Id., at 185 (alterations in original). The de-
fendant agreed to the court’s representation. When he later
filed a notice of appeal, the Government argued that he had
relinquished his appeal right in that courtroom exchange.
We rejected that view, holding that the defendant’s “acqui-
escence neither expressly nor implicitly waived his right to
appeal.” Ibid. Similarly in this case, any acquiescence that
the Government’s silence conveyed “neither expressly nor
implicitly” gave up its right under the plea agreement. It is
just that here the relevant right is not to appeal, but instead
to enforce the appeal waiver.
III
The question then becomes whether that right to enforce
has limits (beyond any stated in the agreement itself ) and,
if so, what they are. It is common ground that an appeal
waiver, like the rest of a plea agreement, must be knowing
and voluntary to be valid and thus to be enforceable. See
Brady v. United States, 397 U. S. 742, 748 (1970).
3
Related
to that settled rule is another: An appeal waiver, again like
the rest of the agreement, is not knowing and voluntary if
it was the product of ineffective assistance of counsel. See
Hill v. Lockhart, 474 U. S. 52, 56 (1985) (“[T]he
——————
3
We do not otherwise address in this opinion the circumstances in
which an appeal waiver might be invalidly obtained, as through fraud or
coercion. We instead discuss only when a validly obtained waiver may
become unenforceable.

8 HUNTER v. UNITED STATES
Opinion of the Court
voluntariness of [a] plea depends on whether counsel’s ad-
vice was within the range of competence demanded of attor-
neys in criminal cases”). So an appeal waiver tainted by
ineffective assistance is not enforceable.
4
Putting that to
the side, the Fifth Circuit, as noted above, holds appeal
waivers unenforceable in only one circumstance: when the
sentence sought to be appealed exceeds the statutory max-
imum. See supra, at 4. The Government here espouses yet
a stricter view, maintaining that knowing and voluntary
appeal waivers are always enforceable. See Brief for United
States 10, 12, 30–31; Tr. of Oral Arg. 63–64. But as Hunter
notes, most courts of appeals have instead taken a less
stringent approach, declining to enforce appeal waivers
when doing so would produce a “miscarriage of justice.” See
Brief for Hunter 34–37; supra, at 4–5, and n. 1. Which po-
sition is right?
The answer stems from the special, and indeed pivotal,
role of the judiciary in approving and implementing appeal
waivers. Such a provision, of course, is part of the bargain
struck by a defendant and prosecutor, without judicial in-
volvement. See Fed. Rule Crim. Proc. 11(c)(1). But the dis-
trict court must accept the plea agreement, including any
appeal waiver, before it can go into effect. See Rule
11(c)(3)(A) (“[T]he court may accept the agreement, reject
it, or defer a decision”). And that decision is one given over
——————
4
Every Circuit, including the Fifth, has recognized as much. See
United States v. Ortiz-Vega, 860 F. 3d 20, 28 (CA1 2017); United States
v. Lloyd, 901 F. 3d 111, 124 (CA2 2018); United States v. Fazio, 795 F. 3d
421, 426 (CA3 2015); Smith, 134 F. 4th, at 261; Barnes, 953 F. 3d, at 388–
389; United States v. Toth, 668 F. 3d 374, 377–378 (CA6 2012); Nulf, 978
F. 3d, at 506–507; Andis, 333 F. 3d, at 890–891; United States v. Silveira,
997 F. 3d 911, 913 (CA9 2021); Holzer, 32 F. 4th, at 886; United States v.
Puentes-Hurtado, 794 F. 3d 1278, 1284 (CA11 2015); Guillen, 561 F. 3d,
at 530–531. And in any event, the Government appears to include an
ineffective-assistance exception in all plea agreements it makes, as it did
in Hunter’s. See U. S. Dept. of Justice, Manual §9–16.330 (Jan. 2020);
supra, at 2.

9 Cite as: 608 U. S. ____ (2026)
Opinion of the Court
to “sound judicial discretion.” Santobello v. New York, 404
U. S. 257, 262 (1971); see Advisory Committee’s Notes on
1974 Amendment to Fed. Rule Crim. Proc. 11, 18 U. S. C.
App., p. 53 (“[T]he acceptance or rejection of a plea agree-
ment” is “left to the discretion of the individual trial judge”).
If thus approved, an appeal waiver next falls into the lap of
a court of appeals, which has exclusive control over its op-
eration. Nothing, after all, literally prevents a defendant
who has signed such a waiver from filing an appeal: The
court’s docket is as open to him as to any other unhappy
litigant. So the real-world effect of a waiver provision
turns, and turns only, on whether the appeals court decides
to enforce it. And the consequence of that decision has eve-
rything to do with courts and the judgments they render. If
enforced, the appeal waiver will, by eliminating judicial re-
view, cement into place a district court’s sentence, whether
or not lawful. From start to finish, then, courts are in the
middle of, and partly responsible for, appeal waivers and
their results.
Because that is so, the standard for enforcing appeal
waivers implicates the interests not only of the agreement’s
parties, but also of the judiciary. If a court always carries
out those waivers—no matter the kind or degree of error
tainting a sentence—the judicial system’s integrity may
come into question. This Court has explained the point
when addressing waivers of other rights held by criminal
defendants. In Wheat v. United States, 486 U. S. 153
(1988), for example, we held that a defendant’s waiver of a
lawyer’s conflict of interest did not necessarily “cure[] [the]
problem[]” because he was not the only one with a stake:
The “[f]ederal courts,” we reasoned, have an “independent”
“institutional interest” in ensuring that legal proceedings
“appear fair to all who observe them.” Id., at 160. So too,
in United States v. Mezzanatto, 513 U. S. 196 (1995), we rec-
ognized that some evidentiary rules may be “so fundamen-
tal” to a trial’s legitimacy that they could not be waived

10 HUNTER v. UNITED STATES
Opinion of the Court
“without irreparably discrediting the federal courts.” Id.,
at 204 (alteration omitted). To show the idea’s obviousness,
we borrowed from a court of appeals’ opinion: “[I]f the par-
ties stipulated to trial by 12 orangutans[,] the defendant’s
conviction would be invalid notwithstanding his consent,
because some minimum of civilized procedure is required
by community feeling regardless of what the defendant
wants.” Ibid. (quoting United States v. Josefik, 753 F. 2d
585, 588 (CA7 1985) (Posner, J.)). But more prosaic exam-
ples are not hard to come by: “We have repeatedly stressed
the importance” of “the interest of the Judiciary and the
public in correcting grossly prejudicial errors of law that
undermine confidence in our legal system.” Greenlaw v.
United States, 554 U. S. 237, 262 (2008) (A
LITO, J., dissent-
ing) (citing cases). And that interest, for the reasons just
given, may be in play when a court is called on to enforce
an appeal waiver. Whatever the parties have agreed to, the
court’s own responsibility is apparent, and so automatic en-
forcement may “risk[] institutional harm.” Mezzanatto, 513
U. S., at 205.
For that reason, neither the Government’s nor the Fifth
Circuit’s proposed rule can be the right one. The Govern-
ment’s maximalist position first runs into the scenario that
even the Fifth Circuit will not tolerate: when a judge im-
poses on a defendant who has signed an appeal waiver a
sentence beyond what the relevant statute allows. See
United States v. Kim, 988 F. 3d 803, 810, n. 1 (CA5 2021)
(declining to enforce an appeal waiver in such a case be-
cause of “the legal truism that a court must not impose a
sentence” that is “unauthorized by law”). Suppose, for ex-
ample, that a judge sentences a misdemeanant to life in
prison, when the applicable law caps a prison term at one
year. If an appellate court had to dismiss the resulting ap-
peal, it would call into doubt the judicial system’s very at-
tachment to law. But so too would a dismissal in certain
other situations, which fall outside both the Government’s

11 Cite as: 608 U. S. ____ (2026)
Opinion of the Court
and the Fifth Circuit’s rules. Consider some examples of-
fered at oral argument in this case. If, say, the sentencing
judge was biased against individuals of one race or religion,
and unconstitutionally considered that factor in imposing a
sentence. See Tr. of Oral Arg. 64. Or if the judge (as in an
actual case) imposed as a condition of supervised release
that the defendant not become pregnant. See id., at 77;
People v. Zaring, 8 Cal. App. 4th 362, 373–375 (1992). Or
if the judge, to use a variation on Mezzanatto’s absurdity,
“let an orangutan pick a sentence out of a hat.” Tr. of Oral
Arg. 66; see supra, at 10. Those sentences would likewise
impugn the judiciary’s integrity if an appeal waiver com-
pelled them to stand. However certain the parties’ agree-
ment, the courts are too enmeshed in its approval and im-
plementation to escape responsibility for such results.
We thus approve the majority view among the courts of
appeals that an appeal waiver is unenforceable when it
would result in a miscarriage of justice. That rule, properly
understood and applied, sets a high bar: The waiver may be
set aside only if the sentence is marred by the kind of egre-
gious error that would bring the judicial system into disre-
pute. The error must be obvious—not one a judge could rea-
sonably make. And it must be of the type that would
undermine public confidence in the judiciary. Sentencing
is a complex affair in our criminal justice system, involving
for example the detailed calculation of a Sentencing Guide-
lines range and the mandatory consideration of multiple
sentencing factors. In that endeavor, it is unfortunate but
inevitable that mistakes will occur. Such standard-fare er-
rors in misapplying sentencing law cannot cancel an appeal
waiver. Were they to do so, the utility of waivers in plea
negotiations could plummet: such a provision would have
less value to the Government, and so might induce fewer
concessions to a defendant. And still more to our point, that
kind of standard error is not likely to discredit the judici-
ary’s commitment to law. But some faults in sentencing

12 HUNTER v. UNITED STATES
Opinion of the Court
can. So a high bar is not the same as an insurmountable
one. The point of the miscarriage-of-justice limit, as many
appellate courts have properly applied it, is to offer a safety
valve for extreme cases—a way out of a waiver when the
justice system’s basic integrity is at stake.
The nature of the miscarriage-of-justice limit precludes
any attempt to list all the situations in which it will over-
come an appeal waiver. Extreme cases, after all, are hard
to anticipate before they happen. But a few examples of the
kinds of errors we mean—the kind that would bring the ju-
diciary into disrepute—may provide guidance to lower
courts. First, a defendant may appeal a sentence exceeding
what the relevant statute allows—most commonly, a term
of years above the maximum prescribed. See, e.g., Kim, 988
F. 3d, at 810–811, and n. 1; supra, at 10. Second, a defend-
ant may appeal a sentence that is infected with a blatant
constitutional error, such as when a judge takes account of
a constitutionally impermissible factor (like race) or im-
poses a constitutionally infirm condition of supervised re-
lease (like barring a defendant from becoming pregnant).
See, e.g., United States v. Elliott, 264 F. 3d 1171, 1173
(CA10 2001); supra, at 11. And third, a defendant may ap-
peal if his sentence was imposed without “some minimum
of civilized procedure” as in, yes, the “twelve orangutans”
case—or less extravagantly, one in which the judge refused
to hold a hearing consonant with basic principles of law.
United States v. Adkins, 743 F. 3d 176, 192–193 (CA7
2014); see United States v. Behrens, 375 U. S. 162, 165–166
(1963). These examples are just examples, not intended to
be exclusive, but they serve to illustrate the high bar a de-
fendant must surmount to overcome an appeal waiver.
Contrary to the Government’s assertion, we doubt that
such a confined exception to the rule of enforcement will
“open the floodgates” to “waived appeals.” Tr. of Oral Arg.
60, 87; see id., at 62. As earlier noted, many Circuits al-
ready place a miscarriage-of-justice limit on appeal

13 Cite as: 608 U. S. ____ (2026)
Opinion of the Court
waivers. See supra, at 4–5, n. 1. The Government has of-
fered no evidence that those courts are awash with appeals,
much less ones demanding serious litigation. Nor is that
dearth of support surprising. The Circuits using the mis-
carriage-of-justice approach have mainly understood it to
erect a substantial barrier, just as we require today. See,
e.g., United States v. Santiago, 769 F. 3d 1, 8 (CA1 2014)
(The “exception is meant only for egregious cases and is to
be applied sparingly”); United States v. Andis, 333 F. 3d
886, 891 (CA8 2003) (The exception is “a narrow one” be-
cause appeal waivers “should not be easily voided”). Such
a hard-to-meet standard presumably deters many appeals.
And those still filed can often be quickly dismissed because
the errors asserted are uncertain or ordinary. Thankfully,
the kinds of sentences that raise miscarriage-of-justice con-
cerns, as we have described them, are rare in our justice
system. The possibility of correction helps keep them so,
and thus safeguards that system’s integrity, without impos-
ing excessive burdens on either the appeals courts or the
Government.
Hunter and the Government here dispute whether, under
the right legal standard, his appeal can go forward. Recall
that Hunter wants to challenge the District Court’s require-
ment that, while on supervised release, he “take all mental-
health medications” that his physician prescribes. See su-
pra, at 3. In Hunter’s view, “[t]he right to be free from co-
erced medical treatment is fundamental,” and the District
Court infringed on it without sufficient basis. Brief for
Hunter 28; see Reply Brief 17–18 (citing 18 U. S. C.
§3583(d)(2)). In the Government’s opposing view, a sen-
tencing court may demand that a defendant take medica-
tion when he has suffered from mental-health problems, as
the presentence report found Hunter had done. Brief for
United States 37 (citing §3563(b)(9)).
In keeping with our usual practice, we decline to decide
in the first instance how that dispute should come out

14 HUNTER v. UNITED STATES
Opinion of the Court
under the miscarriage-of-justice approach we adopt today.
The Court of Appeals did not address that question, because
its Circuit precedent required a narrower inquiry. And we
are, as we usually say, “a court of review, not of first view.”
Cutter v. Wilkinson, 544 U. S. 709, 718, n. 7 (2005). It is
therefore now up to the Fifth Circuit to decide whether en-
forcing Hunter’s appeal waiver would result in a miscar-
riage of justice.
Accordingly, we vacate the judgment of the Court of Ap-
peals and remand the case for further proceedings con-
sistent with this opinion.
It is so ordered.

Cite as: 608 U. S. ____ (2026) 1

G
ORSUCH, J., concurring

SUPREME COURT OF THE UNITED STATES
_________________
No. 24–1063
_________________
MUNSON P. HUNTER, III, PETITIONER v.
UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT

[June 18, 2026]
JUSTICE GORSUCH, with whom JUSTICE SOTOMAYOR and
J
USTICE JACKSON join, concurring.
In our times, the jury trial has given way to a conveyor
belt of plea bargains. At least some responsibility for that
development lies with this Court. When confronted with
coercive prosecutorial tactics designed to induce defendants
to take plea deals, the Court has often condoned those prac-
tices or let them pass in silence.
Today, the Court begins to correct course. It rules that
prosecutors may not always leverage their plea-bargaining
power to induce a defendant to forgo the right to contest
his sentence on appeal. I agree and write separately to out-
line how we got here and some of the work still ahead.
I
Because the facts of this case are emblematic of many
others, they are worth pausing over. In 2023, the federal
government secured a 10-count indictment against Munson
Hunter for his alleged role in various fraudulent transac-
tions. Four of the charges focused on a single transaction,
while the remaining six focused on others. Altogether, the
government’s charges threatened Mr. Hunter with up to
300 years in prison and a $10 million fine. After bringing
these charges, though, prosecutors offered Mr. Hunter a
deal. If he agreed to waive his right to trial and plead guilty

2 HUNTER v. UNITED STATES
G
ORSUCH, J., concurring
to one count of wire fraud based on a single transaction
worth $38,648.77, prosecutors said they would drop the re-
maining charges against him. Unsurprisingly, Mr. Hunter
agreed. Ultimately, the deal the parties struck also in-
cluded an appeal waiver. By its terms, Mr. Hunter waived
not only his right to appeal his conviction. He also waived
his right to appeal whatever sentence the district court
might later impose. App. to Pet. for Cert. 6a (Pet. App.).
After the district court signed off on the parties’ deal and
accepted Mr. Hunter’s guilty plea, it turned to the question
of an appropriate sentence. While Mr. Hunter pleaded
guilty and admitted to stealing $38,648.77 in one transac-
tion, the district court proceeded to sentence him as some-
one who stole $488,352.25 in 26 transactions. See id., at
20a–21a; Presentence Investigation Report in No. 23–cr–85
(SD Tex.), ECF Doc. 125, pp. 10–13. Some of these addi-
tional funds and transactions were the subject of counts the
government agreed to dismiss in exchange for Mr. Hunter’s
guilty plea. Other funds and transactions were not even
the subject of the government’s charges. See ibid.; Super-
seding Indictment in No. 23–cr–85 (SD Tex.), ECF Doc. 74.
This made a significant difference for Mr. Hunter. Had
the district court sentenced him based on the amount he
had pleaded guilty to stealing, he would have faced an ad-
visory sentencing guidelines range of 15 to 21 months in
prison. See Pet. App. 25a; United States Sentencing Com-
mission, Guidelines Manual §2B1.1(b)(1) (Nov. 2023); id.,
ch. 5, pt. A (sentencing table). Now, though, he faced a rec-
ommended prison term of 41 to 51 months. Pet. App. 25a.
And based on that calculation, the district court chose a
prison sentence of 51 months. The result? A guilty plea to
a single charge enabled prosecutors to secure a punishment
based on other charges they had agreed to drop or had not
even brought.
That was not all. The district court ordered Mr. Hunter
to serve time on supervised release after leaving prison. As

3 Cite as: 608 U. S. ____ (2026)
G
ORSUCH, J., concurring
part of his supervised release, the court directed Mr.
Hunter to comply with various conditions, one of which is
of special relevance here. It arose this way. Before sentenc-
ing, Mr. Hunter met with a probation officer. There, he
“ ‘self-reported’” a history of mental health diagnoses. Brief
for United States 7. As it turned out, that honesty came
with a price. At sentencing, the probation officer urged the
district court to require Mr. Hunter to “‘participate in a
mental-health treatment program’ and ‘take all mental-
health medications that are prescribed by [his] treating
physician’” while on supervised release. Ibid.
Mr. Hunter objected to one part of this recommendation.
He did not dispute that he has suffered from mental health
issues. He even said that he “want[ed] to take mental
health programs.” Pet. App. 24a. But, he added, “I don’t
want to take any medication. I don’t drink. I don’t use
drugs. I don’t even curse. I don’t want to have to be forced
to medicate.” Ibid. In response, the court did not find that
forcing Mr. Hunter to take psychiatric medication against
his will would further any particular goal of criminal pun-
ishment. But it imposed the condition anyway.
After sentencing, Mr. Hunter sought to appeal the dis-
trict court’s forced-medication condition to the Fifth Circuit.
There, he pointed to this Court’s decisions holding that in-
dividuals enjoy a “constitutionally protected liberty interest
in avoiding the unwanted administration of antipsychotic
drugs.” Sell v. United States, 539 U. S. 166, 178 (2003) (in-
ternal quotation marks omitted). Under those precedents,
he argued, the district court could not constitutionally force
him to take psychiatric medication absent compelling evi-
dence that it was necessary to promote a valid sentencing-
related interest. And, he submitted, the district court had
no compelling evidence before it that forcing him to take
psychiatric medication would advance a legitimate penolog-
ical interest associated with his crime of stealing

4 HUNTER v. UNITED STATES
G
ORSUCH, J., concurring
$38,648.77. See Brief for Appellant in No. 24–20211 (CA5),
pp. 10–11.
The Fifth Circuit dismissed the appeal. In doing so, it
assumed that the district court had committed a constitu-
tional error in ordering Mr. Hunter to take psychiatric med-
ication. Even so, the Court of Appeals held, it was power-
less to say so. Because Mr. Hunter had agreed to an appeal
waiver, the court concluded, it couldn’t hear his case. See
Pet. App. 2a.
II
The most remarkable thing about Mr. Hunter’s plea-bar-
gaining journey may be how unremarkable it is. Our crim-
inal justice system is no longer dominated by trials and sen-
tences based on them, but plea bargains that work out in
ways not unlike his own.
Of course, it was not always so. At the Nation’s founding,
the right to trial by jury was considered part of every Amer-
ican’s “birth-right and inheritance.” 3 J. Story, Commen-
taries on the Constitution of the United States §1773,
p. 652 (1833). Outraged by British efforts to deny that right
in the colonies, those who fought the Revolution cited its
suppression as one of their reasons for declaring independ-
ence. Declaration of Independence ¶20. After the Revolu-
tion, too, the founding generation took care to secure the
right to trial by jury in criminal cases not just once, but
twice, in the Constitution and Bill of Rights they adopted.
Art. III, §2, cl. 3; Amdt. 6; see also Erlinger v. United States,
602 U. S. 821, 829–832 (2024).
Really, it seems plea bargains didn’t begin to emerge as
an alternative to trial in serious criminal cases until the
mid-nineteenth century. See C. McCoy, Plea Bargaining as
Coercion, 50 Crim. L. Q. 67, 73–74 (2005). And even then,
the practice usually met with intense judicial skepticism.
Many judges considered the “idea that the jury right could
become the subject of an agreement between the prosecutor

5 Cite as: 608 U. S. ____ (2026)
G
ORSUCH, J., concurring
and the defendant . . . abhorrent.” N. King, Priceless Pro-
cess: Nonnegotiable Features of Criminal Litigation, 47
UCLA L. Rev. 113, 125 (1999) (collecting cases); see also A.
Alschuler, Plea Bargaining and Its History, 79 Colum.
L. Rev. 1, 19–22 (1979) (same).
That skepticism continued well into the twentieth cen-
tury. In Walker v. Johnston, 312 U. S. 275 (1941), this
Court held that a defendant is “deprived of a constitutional
right” whenever he is “deceived or coerced by the prosecutor
into entering a guilty plea.” Id., at 286. The prosecutor’s
alleged tactics there? Obstructing the defendant’s effort to
hire a lawyer, showing the defendant “pictures of the scene
of the alleged crime,” seeking to “persuade him that he
would be proved guilty,” and “warning him that he would
be sentenced to twice as great a [prison] term if he did not”
agree to plead guilty. Id., at 281–282.
The Court repeated the message in Machibroda v. United
States, 368 U. S. 487 (1962). “A guilty plea . . . is void,” the
Court ruled, when it is “induced by promises or threats
which deprive it of the character of a voluntary act.” Id., at
493. There, too, the Court expressed “no doubt” that a de-
fendant “is entitled to have his sentence vacated” when a
prosecutor promises a certain sentence in exchange for a
guilty plea, discourages the defendant from communicating
with his attorney about the plea offer, and threatens the
defendant with additional charges if he “make[s] a scene”
before sentencing. Id., at 489–490, 493 (internal quotation
marks omitted).
Eventually, though, this Court took a dramatic turn. In
1971, it proclaimed plea bargaining “highly desirable,”
something “to be encouraged,” and “an essential component
of the administration of justice.” Santobello v. New York,
404 U. S. 257, 260–261. “If every criminal charge were sub-
jected to a full-scale trial,” the Court worried, “the States
and the Federal Government would need to multiply by
many times the number of judges and court facilities.” Id.,

6 HUNTER v. UNITED STATES
G
ORSUCH, J., concurring
at 260; see also Brady v. United States, 397 U. S. 742, 745–
746, 749–753 (1970) (upholding the validity of a plea en-
tered pursuant to a sentencing scheme the Court had inval-
idated as unconstitutionally coercive just two years earlier).
Bordenkircher v. Hayes, 434 U. S. 357 (1978), illustrates
the kind of coercive tactics this Court became willing to
stomach in the name of facilitating plea deals. That case
began when authorities indicted Paul Hayes, a Kentucky
man, for forging an $88.30 check. Id., at 358. Punishable
by 2 to 10 years in prison, the charge led to plea negotia-
tions. Ibid. If Mr. Hayes would save the government from
“the inconvenience . . . of a trial,” the prosecutor offered to
recommend a 5-year prison sentence. Ibid. (internal quota-
tion marks omitted). But if not, the prosecutor warned, he
would return to the grand jury and seek a further indict-
ment under a Kentucky three-strikes law carrying a life
sentence. Id., at 358–359. When Mr. Hayes refused the
deal, the prosecutor proved true to his word. Id., at 359. He
sought and secured the new indictment as promised. Ibid.
And, after a jury convicted, Mr. Hayes received a life sen-
tence. See ibid.
In a decision perhaps unthinkable only a few decades ear-
lier, this Court in Bordenkircher endorsed the prosecutor’s
tactics. However things might work in “‘an ideal world,’”
the Court said, “‘the fact is that the guilty plea and the of-
ten concomitant plea bargain are important components of
this country’s criminal justice system.’” Id., at 361–362
(quoting Blackledge v. Allison, 431 U. S. 63, 71 (1977)). As
the Court saw things, prosecutors need room to issue
threats in plea bargaining—even when it means threaten-
ing a life sentence for a forged check worth less than $100.
434 U. S., at 363–365.
Unsurprisingly, prosecutors quickly began taking full ad-
vantage of this new judicial latitude. See W. Stuntz, The
Collapse of American Criminal Justice 259–260 (2011).
They threatened layers of additional charges and decades

7 Cite as: 608 U. S. ____ (2026)
G
ORSUCH, J., concurring
of additional prison time if defendants dared to exercise
their right to trial by jury. Ibid. Prosecutors sometimes
promised charges against defendants’ spouses and parents
too. See id., at 260. “[T]hreats [that] would be deemed ex-
tortionate” “[o]utside the plea bargaining process” became
“par for the course” in our criminal justice system. Ibid.
To be sure, this Court is not wholly responsible for these
developments. Other causes are at play as well. Since the
1970s, the number of federal criminal laws has grown rap-
idly. The prison terms attached to federal crimes have also
grown. Some now say there is not an adult American who
has not committed one felony or another. D. Husak, Over-
criminalization: The Limits of the Criminal Law 24 (2008).
Federal sentencing guidelines, as well, currently recom-
mend higher sentences for most defendants who “exercise
[their] constitutional right to trial.” USSG §3E1.1, and
comment., n. 2. And while prosecutors once felt constrained
by “the traditional maxim that ‘an indictment should not
include more than one felony,’ . . . today’s prosecutors [of-
ten] bring as many overlapping felony charges as they can
in a single case.” Barrett v. United States, 607 U. S. 128,
150–151 (2026) (G
ORSUCH, J., concurring in part) (quoting
Pointer v. United States, 151 U. S. 396, 403 (1894)).
Together with this Court’s approval of aggressive negoti-
ating tactics, developments like these have made it easier
than ever for prosecutors to cajole defendants into pleading
guilty. So much so that perhaps 95 percent of convictions
now come by way of plea bargains. See R. Barkow, Justice
Abandoned 74–75 (2025). These days, plea bargaining is
not just “some adjunct to the criminal justice system; it is
the criminal justice system.” R. Scott & W. Stuntz, Plea
Bargaining as Contract, 101 Yale L. J. 1909, 1912 (1992).
III
If plea bargaining on this scale and in this manner is a
modern phenomenon, appeal waivers represent a more

8 HUNTER v. UNITED STATES
G
ORSUCH, J., concurring
recent development yet. Pursuant to an appeal waiver, a
defendant usually must agree to waive not only any right
he may have to contest his conviction on appeal. See 28
U. S. C. §1291; Class v. United States, 583 U. S. 174, 178–
182 (2018). Typically, he must also agree to waive his right
to appeal any sentence a district court might issue after ac-
cepting his guilty plea. See 18 U. S. C. §3742. A defendant
must do so even though he does not yet know what that
sentence will be. And he must do so even while the govern-
ment retains its right to appeal any decision it doesn’t like.
Forty years ago, appeal waivers like these “were rare or
nonexistent.” A. Alschuler, Plea Bargaining and Mass In-
carceration, 76 N. Y. U. Annual Survey of Am. Law 205,
226, and n. 146 (2021). Today, they are commonplace. See
Q. Sorenson, Appeal Rights Waivers, The Federal Lawyer,
Oct./Nov. 2018, p. 33; S. Klein, A. Remis, & D. Elm, Waiving
the Criminal Justice System, 52 Am. Crim. L. Rev. 73, 85–
87, 122 (2015).
Consider what this means. Because a defendant con-
fronted with an appeal waiver during plea bargaining does
not know what sentence a court will issue, he must negoti-
ate in the dark. What if, as the Fifth Circuit assumed here,
the sentencing judge imposes a punishment the Constitu-
tion does not tolerate? What if the judge fails to respect this
Court’s precedents and Congress’s statutes governing how
he must proceed at sentencing and what punishments he
may lawfully issue? What if a judge goes so far as to allow
an orangutan to pick the defendant’s sentence from a hat?
As the government tells it, a defendant with an appeal
waiver has no way to correct any of these errors on appeal
(yes, even when it comes to the orangutan, see Tr. of Oral
Arg. 65–66, 91–92). And yet, because an appeal waiver may
often be bundled together with other terms in a plea deal in
a take-or-leave package, a defendant may often have little
choice but to accept risks like these—especially given the
consequences prosecutors can visit on those who refuse.

9 Cite as: 608 U. S. ____ (2026)
G
ORSUCH, J., concurring
Much as plea bargaining initially met with judicial skep-
ticism, so did appeal waivers. Some district court judges
refused to accept plea agreements that included appeal
waivers or struck those waivers completely. See, e.g.,
United States v. Raynor, 989 F. Supp. 43 (DC 1997) (Fried-
man, J.); United States v. Johnson, 992 F. Supp. 437 (DC
1997) (Greene, J.); United States v. Perez, 46 F. Supp. 2d 59
(Mass. 1999) (Gertner, J.); see also United States v. Melan-
con, 972 F. 2d 566, 571 (CA5 1992) (Parker, J., concurring
specially). But with time, and subject to differing excep-
tions, Courts of Appeals largely came to accept appeal waiv-
ers, much as courts had previously come to accept plea bar-
gains themselves. See United States v. Guillen, 561 F. 3d
527, 529, and n. (CADC 2009). For its part, this Court al-
lowed debates over appeal waivers to proceed in the lower
courts for years without comment, offering no statement on
their legality or “on what particular exceptions may be re-
quired.” Garza v. Idaho, 586 U. S. 232, 239, n. 6 (2019).
IV
Today, the Court breaks its silence. Agreeing with Mr.
Hunter and certain Courts of Appeals, it holds that an ap-
peal waiver is unenforceable when a defendant seeks to ap-
peal a sentence that represents a “miscarriage of justice.”
Ante, at 11. To illustrate what this standard means, the
Court offers some “examples.” Ante, at 12. At the same
time, the Court takes care to emphasize that these exam-
ples are “not intended” to be “exclusive.” Ibid.
All that is a welcome first step. But it also leaves lower
courts considerable work ahead to flesh out the standard
the Court announces. Fortunately, it seems to me that de-
cisions from Courts of Appeals that already apply the mis-
carriage-of-justice rule the Court “approve[s]” of today,
ante, at 11, 4–5, n. 1, along with certain of our own existing
precedents, can help illuminate the path forward.

10 HUNTER v. UNITED STATES
G
ORSUCH, J., concurring
Start with this Court’s first example of a miscarriage of
justice, “a sentence exceeding what the relevant statute al-
lows.” Ante, at 12. Or, put another way, a sentence “not
authorized by law.” United States v. Phillips, 124 F. 4th
522, 528 (CA8 2024) (internal quotation marks omitted).
This category of course embraces sentences that exceed the
“maximum prescribed” by statute. Ante, at 12. But, con-
sistent with lower court decisions, the category should like-
wise include sentences imposing penalties the law reserves
for offenses different than those of which the defendant
stands convicted. See Phillips, 124 F. 4th, at 527–528 (ban
on receiving federal benefits). Or ones that order remedies
the law does not permit. See United States v. Yung, 37
F. 4th 70, 82 (CA3 2022) (restitution). And perhaps man-
datory minimum sentences for which the defendant does
not qualify. See 18 U. S. C. §924(e).
Now take the Court’s next example, a sentence premised
on “a blatant constitutional error.” Ante, at 12. As the
Court explains, that includes not only sentences based on
“constitutionally impermissible factor[s]” such as race, reli-
gion, or sex. Ibid. It also extends to “constitutionally infirm
condition[s] of supervised release.” Ibid. Accordingly, a de-
fendant may be able to appeal a sentence imposing a condi-
tion of release that violates his right to be free from forced
medication, or a condition that violates his right to speak or
worship freely, or any other condition that violates one of
his recognized constitutional rights. Really, I would think
a miscarriage of justice all but certain to arise whenever a
sentence infringes a constitutional right that was “firmly
established at the time of sentencing.” United States v.
Carter, 87 F. 4th 217, 225 (CA4 2023) (internal quotation
marks omitted); see also United States v. Del Valle-Cruz,
785 F. 3d 48, 56–57 (CA1 2015) (constitutional right to raise
one’s child).
Next, consider the Court’s third example, sentences
marred by serious procedural errors. Ante, at 12. That

11 Cite as: 608 U. S. ____ (2026)
G
ORSUCH, J., concurring
includes not only a sentence chosen by an orangutan, see
supra, at 8–9, but others reflecting a marked departure
from mandatory sentencing procedures. Ante, at 12; see
also Gall v. United States, 552 U. S. 38, 49–51 (2007) (out-
lining sentencing procedures). Appreciating as much,
Courts of Appeals have often declined to enforce appeal
waivers when a district court breaks from rules requiring it
to give reasons for its chosen sentence or address a defend-
ant’s non-frivolous arguments for a different one. See, e.g.,
United States v. Smith, 134 F. 4th 248, 261–263 (CA4
2025); United States v. Woltmann, 610 F. 3d 37, 39–40 (CA2
2010).
Consider also aspects of sentencing that can require a de-
gree of judicial discretion: the application of the advisory
sentencing guidelines, the imposition of supervised release
conditions within statutory and constitutional bounds, and
the weighing of 18 U. S. C. §3553(a)’s sentencing factors. I
appreciate that “standard-fare” errors in those areas will
not often clear the “high bar” the Court sets today. Ante, at
11. But some errors may. For example, and as we have
held, the failure to correct a plain and nonharmless error in
calculating an advisory guidelines range ordinarily “will se-
riously affect the fairness, integrity, and public reputation
of judicial proceedings.” Rosales-Mireles v. United States,
585 U. S. 129, 145 (2018). Indeed, “‘what reasonable citizen
wouldn’t bear a rightly diminished view of the judicial pro-
cess and its integrity if courts refused to correct obvious er-
rors of their own devise that threaten to require individuals
to linger longer in federal prison than the law demands?’”
Id., at 141 (quoting United States v. Sabillon-Umana, 772
F. 3d 1328, 1333–1334 (CA10 2014)).
A miscarriage of justice would seem to arise, as well,
when a district court metes out punishment that is so sub-
stantively unreasonable that it would fail under the “defer-
ential abuse-of-discretion standard” that appellate courts
already apply in sentencing challenges. Gall, 552 U. S., at

12 HUNTER v. UNITED STATES
G
ORSUCH, J., concurring
41, 51–52. Along those lines, lower courts applying the mis-
carriage-of-justice rule have acknowledged that “egregious”
harm necessarily results from any supervised release con-
dition, or any other component of a sentence, “wholly unre-
lated to legitimate sentencing purposes” or “lacking in ra-
tionality.” United States v. Boudreau, 58 F. 4th 26, 33 (CA1
2023) (internal quotation marks omitted); see also, e.g.,
United States v. Velez-Luciano, 814 F. 3d 553, 564–565
(CA1 2016) (“a highly invasive [medical] procedure” that
“has no efficacy”).
1
V
I wonder, too, if there are even deeper problems lurking
here. Yes, as Mr. Hunter argues, an appeal waiver is un-
enforceable when a defendant seeks to appeal a sentence
that represents a “miscarriage of justice.” And, yes, to re-
solve today’s case, that is all we need decide. But, as the
Court recognizes, appeal waivers may raise other problems
as well. See ante, at 7, n. 3. Consider just a couple of them.
The Due Process Clause of the Fifth Amendment, this
Court has held, tolerates only “voluntary and knowing”
guilty pleas. McCarthy v. United States, 394 U. S. 459, 466
(1969). That standard is met only if the defendant “inten-
tional[ly] relinquish[es] or abandon[s] . . . known right[s] or
privilege[s].” Ibid. (internal quotation marks omitted). A
guilty plea thus must be made both “voluntarily” and “with
full understanding of the consequences.” Kercheval v.
United States, 274 U. S. 220, 223 (1927). It’s a rule that
means a defendant signing a plea agreement containing an
appeal waiver must voluntarily abandon not just his right
——————
1
To the extent JUSTICE KAVANAUGH believes the foregoing discussion
contemplates “a lower bar” than is appropriate, post, at 1 (concurring
opinion), his unexplained disagreement lies not with me, but with what
many lower courts and this Court have said in the past about what kinds
of errors represent miscarriages of justice or otherwise reflect adversely
on the integrity of the Judiciary.

13 Cite as: 608 U. S. ____ (2026)
G
ORSUCH, J., concurring
to trial but his right to appeal his conviction and sentence
as well. And he must fully understand the consequences of
that decision. Ante, at 7 (“[A]n appeal waiver, like the rest
of a plea agreement, must be knowing and voluntary to be
valid”); see also Garza, 586 U. S., at 239; United States v.
Davis, 588 U. S. 445, 451 (2019) (the “first essential” of due
process is “fair notice” (internal quotation marks omitted)).
Those principles may pose an independent problem for
appeal waivers that purport to insulate sentencing errors
from review. After all, and as the district court acknowl-
edged in this very case, when defendants like Mr. Hunter
sign plea agreements containing appeal waivers, “no one
knows . . . what sentence the Court will impose.” App. 8–9.
Given that, how can a defendant “know” and “fully under-
stand” at the time he signs a plea agreement that a court
might later order punishment that defies the Constitution,
a federal statute, or this Court’s precedents? Don’t the par-
ties generally expect that a sentencing court will act con-
sistently with the rules of law then in force? Of course, dis-
trict courts must discuss an appeal waiver’s general
implications with a defendant before accepting a plea agree-
ment containing one. See Fed. Rule Crim. Proc. 11(b)(1)(N);
App. 10–11. But the colloquy in this case did not include—
nor does anything in the Federal Rules contemplate—a
warning that the district court might later violate the law.
For good reason. A legal system branded with a disclaimer
that its judges might violate the law would be no legal sys-
tem at all.
Notably, too, this Court has found prospective waivers of
many other statutory rights invalid and unenforceable. We
have held that a company’s prospective waiver of its right
to remove lawsuits to federal court—extracted as a condi-
tion of doing business in a State—not just “void” but “repug-
nant to the Constitution and laws of the United States.”
Home Ins. Co. v. Morse, 20 Wall. 445, 454, 457–458 (1874).
We have held that an employee’s rights under Title VII of

14 HUNTER v. UNITED STATES
G
ORSUCH, J., concurring
the Civil Rights Act of 1964 are not susceptible of prospec-
tive waiver. Alexander v. Gardner-Denver Co., 415 U. S. 36,
51–52 (1974). The same goes for rights under the Fair La-
bor Standards Act and 42 U. S. C. §1983. Barrentine v. Ar-
kansas-Best Freight System, Inc., 450 U. S. 728, 740 (1981);
McDonald v. West Branch, 466 U. S. 284, 290 (1984). And
we have similarly suggested on multiple occasions that a
private agreement might not be enforced if it “operate[s] . . .
as a prospective waiver of a party’s right to pursue” various
other “statutory remedies.” Mitsubishi Motors Corp. v.
Soler Chrysler-Plymouth, Inc., 473 U. S. 614, 637, n. 19
(1985) (antitrust laws); see also 14 Penn Plaza LLC v. Pyett,
556 U. S. 247, 273 (2009) (Age Discrimination in Employ-
ment Act); Vimar Seguros y Reaseguros, S. A. v. M/V Sky
Reefer, 515 U. S. 528, 539–541 (1995) (Carriage of Goods by
Sea Act).
So far, the government has offered no colorable explana-
tion why a defendant’s prospective waiver of his statutory
right to appeal his sentence should be treated differently.
The government stresses that a criminal defendant “may
always choose not to appeal” his sentence. Brief for United
States 22. But a litigant may also choose not to exercise his
right to remove an existing case to federal court or bring
suit to vindicate a Title VII or antitrust injury. And none
of that has prevented us from calling prospective waivers
void in those contexts. The government also contends that
prospectively waiving the right to appeal a sentence does
not “implicate broader social interests that form part of [an]
unalterable statutory policy.” Ibid. (internal quotation
marks omitted). But it’s hard to see on what basis we might
conclude that the Sentencing Reform Act’s promise to de-
fendants that they may appeal their sentences implicates
“social interests” and “statutory policy” any less worthy of
respect than similar promises found in so many other stat-
utory regimes where we have said prospective waivers are
impermissible. Certainly, one would think a criminal

15 Cite as: 608 U. S. ____ (2026)
G
ORSUCH, J., concurring
defendant’s right to appeal his sentence ranks at least as
highly as, for instance, a right to nullify a contractual pro-
vision “‘relieving [a] carrier . . . from liability’” for damage
to the goods it transmits. Vimar, 515 U. S., at 534 (quoting
46 U. S. C. App. §1303(8) (1994 ed.)).
If a defendant may prospectively waive the right to ap-
peal his sentence, too, one might wonder what’s to stop
prosecutors from pushing their luck further yet. Might we
eventually face plea agreements that include prospective
waivers of the defendant’s right to complain about future
unreasonable searches and seizures of his home? See L.
Gill, Virginia Governor Vetoes a Ban on Plea Deals that
Waive People’s Constitutional Rights, Bolts (Apr. 14, 2026),
https://perma.cc/3FL2-LBNB. Or prospective waivers of a
defendant’s right to seek a jury (rather than bench) trial in
future proceedings if he ever is charged with another crime?
See P. Hamburger, Purchasing Submission 165 (2021).
2
——————
2
Two of my colleagues seek to bolster the government’s defense of pro-
spective appeal waivers. But respectfully, their offerings have problems
too. After admitting that some rights cannot be prospectively waived,
J
USTICE BARRETT fails to provide any reason why a criminal defendant’s
right to appeal an unconstitutional or unlawful sentence should not be
among them. See post, at 2 (concurring opinion). Meanwhile, J
USTICE
THOMAS seeks to distinguish between “procedural mechanism[s],” which
he says can always be prospectively waived, and “substantive rights,”
which he agrees (sometimes) cannot. Post, at 8, n. 4 (dissenting opinion).
But that distinction cannot explain our cases. Morse involved a proce-
dural right—the right to remove a lawsuit to federal court—yet we held
it insusceptible of prospective waiver. 20 Wall., at 452–458. And in Al-
exander, the plaintiff did not prospectively waive substantive protections
against racial discrimination by his employer. See 415 U. S., at 39. In-
stead, he waived a procedural mechanism to vindicate those protections,
agreeing to arbitrate future claims of racial discrimination rather than
litigate them. See id., at 40–42. Yet there too, this Court held the pro-
spective waiver void. See id., at 51–52; see also Barrentine, 450 U. S., at
730–733 (similar). Given precedents like these, it would seem to follow,
a fortiori, that a waiver like Mr. Hunter’s is also void, as it prospectively
deprives a defendant of any forum (whether on direct appeal or through

16 HUNTER v. UNITED STATES
G
ORSUCH, J., concurring
Of course, none of these questions is before us in this case.
All, however, may warrant exploration in future cases
where they are presented, as may others besides. See, e.g.,
Melancon, 972 F. 2d, at 577–579 (Parker, J., concurring
specially) (discussing the potential application of the uncon-
stitutional conditions doctrine); United States v. Gordon,
480 F. 3d 1205, 1207–1210 (CA10 2007) (applying contract
principles to a plea bargain’s terms); United States v. La-
jeunesse, 85 F. 4th 679, 692 (CA2 2023) (same).
*
Two hundred years ago, it was likely unimaginable that
almost every federal criminal case would be resolved by
plea bargain. Forty years ago, it may have been no easier
to foresee that plea bargaining defendants would be pressed
to waive their statutory right to appeal sentences yet to be
imposed. Let alone that the federal government would ar-
gue these waivers prevent defendants from appealing even
blatantly unlawful or unconstitutional sentences chosen by
an orangutan. This Court is not responsible for all these
developments, but it has encouraged some of them and
stood silent while others took hold. Today, the Court finally
begins to correct course, taking an important step toward
reining in appeal waivers. It is not a solution to all of plea
bargaining’s excesses, and perhaps not even those associ-
ated with appeal waivers. But it is a start.
——————
collateral attack) to seek relief from an unconstitutional or unlawful sen-
tence. See Pet. App. 6a; Penn Plaza, 556 U. S., at 269, 273 (holding an
agreement to arbitrate ADEA claims generally enforceable in light of
“[a]n arbitrator’s capacity to resolve . . . discrimination claims brought
under the ADEA,” but conceding that such an agreement “will not be
upheld” if a party could “block arbitration of [ADEA] claims”); Mitsubishi
Motors, 473 U. S., at 636–637, and n. 19 (similar); Vimar, 515 U. S., at
539–541 (similar). Not only is J
USTICE THOMAS’s account difficult to rec-
oncile with our precedents. Under his view, it would seem the govern-
ment could go so far as to insist that defendants prospectively waive the
“procedural” right to a jury in any future trial against them.

_________________
_________________
1 Cite as: 608 U. S. ____ (2026)
K
AVANAUGH, J., concurring
SUPREME COURT OF THE UNITED STATES
No. 24–1063
MUNSON P. HUNTER, III, PETITIONER v.
UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[June 18, 2026]
JUSTICE KAVANAUGH, with whom JUSTICE ALITO and
J
USTICE BARRETT join, concurring.
I join the Court’s opinion in full. The Court’s opinion sets
a “high bar” for the miscarriage-of-justice exception to
render an appeal waiver unenforceable. Ante, at 11. The
Court describes the exception as applying in “extreme
cases” to sentencing errors that are “egregious” and
“obvious” and that “undermine public confidence in the
judiciary.” Ante, at 11–12. I appreciate J
USTICE GORSUCH’s
thoughtful concurrence. But I respectfully disagree with
his understanding of the miscarriage-of-justice exception.
As I read it, his concurring opinion would set a lower bar
for the miscarriage-of-justice exception than the Court’s
opinion does. In my view, therefore, the concurrence may
not be entirely consistent with the Court’s opinion. In any
event, the Court’s opinion of course speaks for itself.

_________________
_________________
1 Cite as: 608 U. S. ____ (2026)
B
ARRETT, J., concurring
SUPREME COURT OF THE UNITED STATES
No. 24–1063
MUNSON P. HUNTER, III, PETITIONER v.
UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[June 18, 2026]
JUSTICE BARRETT, concurring.
J
USTICE THOMAS raises some thoughtful points about the
Supreme Court’s supervisory power. See post, at 14–17
(dissenting opinion). Today’s opinion nowhere mentions
this power, however, and I do not understand the Court to
implicitly assert it.
Like J
USTICE THOMAS, I am skeptical that the Supreme
Court possesses an inherent, supervisory authority over in-
ferior federal courts. See A. Barrett, The Supervisory
Power of the Supreme Court, 106 Colum. L. Rev. 324
(2006). At the same time, I have distinguished exercises of
such authority from the development of procedural common
law. See A. Barrett, Procedural Common Law, 94 Va.
L. Rev. 813, 883–884 (2008). The former concerns narrow,
discretionary rules; the latter involves doctrines, like pre-
clusion and abstention, which are “settled by tradition or
emergent consensus.” Id., at 884.
In my view, today’s decision rests on longstanding waiver
principles and thus falls in the latter category. See ante,
at 9 (majority opinion) (comparing appeal waivers to “waiv-
ers of other rights held by criminal defendants”). It is well
established that a defendant may “intentional[ly] relin-
quis[h] or abando[n] . . . a known right.” Johnson v. Zerbst,
304 U. S. 458, 464 (1938); see Shutte v. Thompson, 15 Wall.
151, 159 (1873) (“[A] court whose province it is to

2 HUNTER v. UNITED STATES
B
ARRETT, J., concurring
administer justice, will take care that on the trial of every
cause neither party shall reap any advantage from his own
fraud”). All the same, the Court and other authorities have
long recognized that a court should not enforce a waiver
when doing so would “irreparably discredi[t] the federal
courts.” United States v. Mezzanatto, 513 U. S. 196, 204
(1995) (internal quotation marks omitted); see 1 J. Bishop,
Commentaries on the Law of Criminal Procedure §118,
p. 71 (2d ed. 1872) (“[T]hough the doctrine that a party may
waive a right which the law gives him seems to be univer-
sal, still it is not so in its practical workings”); R. Bowers,
Treatise on the Law of Waiver 390 (1914) (explaining that
there are some rights that a criminal defendant “cannot be
deprived of even with his own consent”). These established
waiver principles do not originate from the Court’s supervi-
sory power. Rather, they belong to the body of procedural
common law doctrines that courts have long developed. See
Barrett, 94 Va. L. Rev., at 884.
The Court’s decision recognizes these established princi-
ples and rightly endorses the “emerging consensus” that
they should inform the enforceability of appeal waivers.
Id., at 886; see ante, at 4, and n. 1, 11. When the Govern-
ment moves to enforce an appeal waiver, it is asking the
court of appeals to hold a defendant to a position that he
knowingly and voluntarily took below. In the mine run of
cases, that waiver should be enforced: The right to appeal,
like most other rights, can be relinquished, either when the
appeal is ripe (by declining to file an appeal) or prospec-
tively (by signing an appeal waiver). But as the Court ex-
plains, there are some extreme cases where enforcing an
appeal waiver would paper over an “egregious” and “obvi-
ous” error that would “bring the judicial system into disre-
pute.” Ante, at 11. In those rare circumstances, the appel-
late court should decline to enforce the waiver so that it may
correct the error.

_________________
_________________
1 Cite as: 608 U. S. ____ (2026)
T
HOMAS, J., dissenting
SUPREME COURT OF THE UNITED STATES
No. 24–1063
MUNSON P. HUNTER, III, PETITIONER v.
UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[June 18, 2026]
JUSTICE THOMAS, dissenting.
Munson Hunter deceived others to make himself nearly
half-a-million dollars. The Government charged him with
10 counts of fraud. If a jury had convicted him of all 10
counts, Hunter could have received a 300-year sentence.
Instead, Hunter knowingly and voluntarily made an agree-
ment with the Government. Under the agreement, the Gov-
ernment would dismiss nine counts. In exchange, Hunter
would plead guilty to the remaining one and waive his right
to appeal his sentence unless it exceeded the statutory max-
imum—a 30-year prison term followed by up to 5 years of
supervised release. Thanks to the agreement, Hunter re-
ceived a 51-month prison term, followed by three years of
supervised release, less than 2% of the prison time to which
the indictment exposed him. Now, Hunter wants to keep
his reduced sentence but take back the appeal waiver, and
the Court holds that he may be able to do so.
I see no basis for excusing Hunter from his appeal waiver.
Defendants could not appeal federal criminal sentences at
all for more than 100 years after the founding; only then did
Congress create the statutory right to do so. “Like many
constitutional and statutory rights, the right to appeal can
be waived by the defendant, and once that choice is finally
made, the defendant is bound by the decision.” Garza v.
Idaho, 586 U. S. 232, 257 (2019) (T
HOMAS, J., dissenting).

2 HUNTER v. UNITED STATES
T
HOMAS, J., dissenting
The Court today creates a “miscarriage-of-justice” excep-
tion to this rule. But, it cannot identify any source of law
for its exception. Neither the contract-law principles that
Hunter invoked nor this Court’s supposed “supervisory
power” give it the authority to override Hunter’s appeal
waiver.
Without any source of law to justify its decision, the Court
appears to rest on its policy concern that holding defend-
ants to their waivers may sometimes lead to unfair results
or make federal courts look bad. But, policy concerns are
not rules of decision in courts of law. Because I would de-
cide Hunter’s case based on law rather than policy, I re-
spectfully dissent.
I
The Government charged Hunter with 10 counts of wire
fraud, bank fraud, and conspiracy to commit wire and bank
fraud. 18 U. S. C. §§1343, 1344, 1349. Each count carried
a statutory maximum sentence of 30 years in prison. If the
jury had convicted Hunter of all 10 counts, the District
Court could have made the sentences run consecutively.
See §3584(a).
The Government and Hunter reached a plea agreement.
Hunter promised to plead guilty to one count of wire fraud.
In exchange, the Government promised to dismiss the nine
remaining counts. The agreement noted that Congress had
authorized, as punishment for the one count that Hunter
was pleading guilty to, a prison term of up to 30 years, so
the deal reduced Hunter’s statutory maximum sentence
from 300 years to 30 years. The agreement also noted that
the court could impose a term of supervised release, which
“is a form of postconfinement monitoring that permits a de-
fendant a kind of conditional liberty by allowing him to
serve part of his sentence outside of prison.” Mont v. United
States, 587 U. S. 514, 523 (2019) (internal quotation marks
omitted). One statutorily authorized condition for a term of

3 Cite as: 608 U. S. ____ (2026)
T
HOMAS, J., dissenting
supervised release is the requirement that the defendant
“undergo available medical, psychiatric, or psychological
treatment.” §3563(b)(9).
As part of the plea agreement, Hunter waived his right to
appeal. The agreement confirmed that Hunter knew that
he had a statutory right to appeal and that by signing the
agreement he “knowingly and voluntarily waive[d]” that
right. App. to Pet. for Cert. 6a. It stipulated that Hunter
knew that this waiver was “made in exchange for the con-
cessions made by the United States in this plea agreement.”
Id., at 8a. It clarified that Hunter knew that the District
Court “has authority to impose any sentence up to and in-
cluding the statutory maximum set for the offense,” and
that “a sentence has not yet been determined by the Court.”
Id., at 7a, 10a. And, it provided two exceptions: He could
appeal to raise an ineffective-assistance-of-counsel claim or
to challenge a sentence that exceeded the statutory maxi-
mum. Id., at 5a–8a, 10a; see Brief for United States 30.
The District Court discussed the appeal waiver with
Hunter, as required by the Federal Rules of Criminal Pro-
cedure. When the Federal Rules address appeal waivers,
they merely require the District Court to inform the defend-
ant of and ensure that the defendant “understands” the
“terms of any plea-agreement provision waiving the right to
appeal.” Fed. Rule Crim. Proc. 11(b)(1)(N). The District
Court carefully adhered to that requirement:
“The Court: The maximum sentence that you face if you
plead guilty is 30 years in prison. . . . Your term of su-
pervised release will be subject to a number of condi-
tions that will be monitored by a probation officer. . . .
Do you understand that?
“The Defendant: Yes, sir. . . .
“The Court: If the sentence that I impose is greater
than the sentence that you now expect or greater than
the sentence that your lawyer or anyone else may have

4 HUNTER v. UNITED STATES
T
HOMAS, J., dissenting
predicted, you will be bound by your guilty plea today,
regardless of your sentence. . . . Do you understand
that?
“The Defendant: Yes, Your Honor.
“[The Court:] Paragraph 5 says . . . ‘[d]efendant know-
ingly and voluntarily waives the right to appeal or col-
laterally attack the conviction and sentence except that
the defendant does not waive the right to raise a claim
of ineffective assistance of counsel.’ . . . “Have you dis-
cussed that provision with your lawyer?
“The Defendant: No. Well, I understand it, Your Honor.
“The Court: Well, let me just be sure. You’re going to
be sentenced if I accept your guilty plea. The most fre-
quent basis for an appeal is complaining of this sen-
tence. It’s very unlikely that you could appeal that un-
der this waiver. Basically you’re agreeing to whatever
sentence I impose. Do you understand that?
“The Defendant: Yes, Your Honor.” App. 8–11 (para-
graph breaks omitted).
After the District Court accepted the agreement, the Pro-
bation Office recommended that the court require Hunter
to undergo psychiatric treatment as a condition of his su-
pervised release, due to his self-reported mental health
problems. At the sentencing hearing, Hunter objected to
this recommendation. The District Court responded that
Hunter “should take” any drugs that his doctor may even-
tually prescribe, but it reassured Hunter that if he objected
to any prescribed treatment, he could raise his concerns
with his probation officer and then with the court. App. to
Pet. for Cert. 24a.
1
Before Hunter could be sent to prison
for violating his supervised-release conditions, the District
——————
1
By law, Hunter can move for modification of his supervised-release
conditions “at any time.” 18 U. S. C. §3583(e)(2).

5 Cite as: 608 U. S. ____ (2026)
T
HOMAS, J., dissenting
Court would have to revoke the supervised-release term af-
ter separate proceedings. §3583(e)(3).
2
The District Court sentenced Hunter to 51 months in
prison and included as a condition of supervised release
that Hunter “must take all mental health medications that
are prescribed by [his] treating physician.” Id., at 35a.
Notwithstanding his appeal waiver, Hunter appealed his
sentence. He argued that the mental-health supervised-re-
lease condition violates his substantive due-process rights
under Cruzan v. Director, Mo. Dept. of Health, 497 U. S. 261
(1990). The Fifth Circuit dismissed Hunter’s appeal be-
cause of the appeal waiver. At this time, there is no evi-
dence that Hunter has been prescribed any medication to
which he objects or that the District Court has had any rea-
son to consider revocation proceedings. See Reply Brief 18.
3
The Court granted certiorari, 607 U. S. 961 (2025), and now
announces a new rule, invalidating any appeal waiver that
an appellate court concludes would result in a miscarriage
of justice.
II
For over 100 years after the founding, federal criminal
defendants had no right to appeal their sentences.
——————
2
Appeals of a district court’s revocation of supervised release, courts
have held, are not barred by a standard waiver of sentencing appeals in
a plea agreement. See United States v. Carruth, 528 F. 3d 845, 846
(CA11 2008) (per curiam); United States v. Lonjose, 663 F. 3d 1292, 1299–
1302 (CA10 2011); cf. United States v. Scallon, 683 F. 3d 680, 683–684,
and n. 4 (CA5 2012) (per curiam) (reserving this question).
3
Because Hunter cannot say whether he will ever be prescribed ob-
jected-to medication, he has conceded that his claim is not ripe under
binding Fifth Circuit precedent. Brief for Appellant in No. 24–20211
(CA5), ECF Doc. 19, p. 15, n. 4 (citing United States v. Ellis, 720 F. 3d
220, 227 (2013) (per curiam), and United States v. Carmichael, 343 F. 3d
756, 761 (2003)). Hunter may well lack Article III standing under our
precedents. See Trump v. New York, 592 U. S. 125, 131–132 (2020) (per
curiam). The Court nonetheless proceeds to the merits without address-
ing its jurisdiction.

6 HUNTER v. UNITED STATES
T
HOMAS, J., dissenting
Although Congress has now authorized such appeals, de-
fendants remain free to decline to exercise that statutory
right or to affirmatively waive it, just like many other pro-
cedural rights. Hunter’s knowing and voluntary waiver of
his statutory appeal rights in his valid plea agreement re-
quired dismissal of his appeal.
A
Defendants may waive their right to appeal, and when
they do so in valid plea agreements, those waivers must be
enforced.
1
Defendants can waive constitutional and statutory proce-
dural rights. “A criminal defendant may knowingly and
voluntarily waive many of the most fundamental protec-
tions afforded by the Constitution.” United States v. Mez-
zanatto, 513 U. S. 196, 201 (1995). They often waive such
rights through plea agreements, which always entail waiv-
ing the constitutional rights to trial by jury, to confront
one’s accusers, and to avoid self-incrimination. See Boykin
v. Alabama, 395 U. S. 238, 243 (1969). If defendants can
waive constitutional procedural rights, it has long followed
that the “same principle, a fortiori, applies to a mere statu-
tory or common-law right.” 1 J. Bishop, Commentaries on
the Law of Criminal Procedure §118, p. 71 (2d ed. 1872)
(Bishop); see also People v. Rathbun, 21 Wend. 509, 542
(N. Y. Sup. Ct. 1839) (noting that because the “prisoner may
even waive his right to a trial,” he also has the lesser power
to “waive any matter of form or substance”); Shutte v.
Thompson, 15 Wall. 151, 159 (1873) (“A party may waive
any provision, either of a contract or of a statute, intended
for his benefit”); People v. Lightner, 49 Cal. 226, 228 (1874)
(“As a general rule a defendant may waive any statutory
right or proceeding”).

7 Cite as: 608 U. S. ____ (2026)
T
HOMAS, J., dissenting
The right to appeal a sentence is a mere statutory right
of modern origin. For much of American history, federal
criminal defendants had no right to appeal at all. Trial-
court judges have always been oath-bound to sentence de-
fendants according to the law. But, for more than a century
after the founding, when they made mistakes—even mis-
takes “apparent on the record”—federal defendants could
not go to an appeals court “to revise the sentences of inferior
courts in criminal cases.” Ex parte Watkins, 7 Pet. 568, 574
(1833); see United States v. Sanges, 144 U. S. 310, 319
(1892) (“For a long time after the adoption of the Constitu-
tion, Congress made no provision for bringing any criminal
case . . . by writ of error”). Then, as now, the Constitution
provided no right to appeal. See McKane v. Durston, 153
U. S. 684, 687 (1894); Jones v. Barnes, 463 U. S. 745, 751
(1983). Even defendants sentenced to death could not ap-
peal until 1889. It was thus “100 years before the defendant
in a criminal case, even a capital case, was afforded appel-
late review as of right.” Carroll v. United States, 354 U. S.
394, 400 (1957) (emphasis deleted). Only after that did
Congress eventually give all federal defendants a right to
appeal. Abney v. United States, 431 U. S. 651, 656, n. 3
(1977); Carroll, 354 U. S., at 400–401.
Congress has now provided defendants a path to seek ap-
pellate review of sentences if they so choose. A defendant
“may file a notice of appeal.” 18 U. S. C. §3742(a) (emphasis
added); see also 28 U. S. C. §1291. But, the right to appeal
“depends on assertion,” so the defendant can “forfei[t]” his
right to appeal by declining to file one or can waive it ex-
pressly. United States v. Wegner, 58 F. 3d 280, 282 (CA7
1995). Because a criminal defendant’s right to appeal is “a
mere statutory . . . right” that he is free to not invoke at all,

8 HUNTER v. UNITED STATES
T
HOMAS, J., dissenting
Bishop §118, he plainly “may waive” it, Shutte, 15 Wall., at
159.
4
2
Waivers in plea agreements are strictly enforced. In San-
tobello v. New York, 404 U. S. 257 (1971), the State waived
its right to make a sentencing recommendation as part of
the defendant’s guilty plea. Id., at 258. But, the State rec-
ommended the statutory maximum at sentencing anyway,
and the trial judge imposed the statutory maximum sen-
tence. Id., at 259–260. On appeal, this Court held that the
defendant should either be free to “withdraw his plea of
guilty” or be entitled to “specific performance of the agree-
ment,” meaning a new sentencing in which the State kept
its promise. Id., at 263. Likewise, in Ricketts v. Adamson,
483 U. S. 1 (1987), the defendant agreed to plead guilty to
——————
4
To be sure, not all statutory rights can be waived. For instance, the
“substantive right” under Title VII to be free from discrimination in the
workplace “may not be prospectively waived.” 14 Penn Plaza LLC v. Py-
ett, 556 U. S. 247, 265 (2009). But, deciding to resolve Title VII claims
“by way of arbitration instead of litigation does not waive” the underlying
substantive “right to be free from workplace . . . discrimination.” Ibid.
Such a decision “waives only the right to seek relief” in one forum as
opposed to another. Id., at 265–266.
An appeal waiver does not waive any substantive right, such as the
right to be free from cruel or unusual punishment or to receive a sentence
below some limit. It instead waives one procedural mechanism for seek-
ing relief in which those underlying substantive rights can be “vindi-
cat[ed]” in one particular forum. Id., at 265. It thus resembles any num-
ber of procedural protections that parties routinely waive in litigation.
See, e.g., United States v. Mezzanatto, 513 U. S. 196, 202–203 (1995)
(Federal Rules of Evidence); id., at 201–202 (Federal Rules of Criminal
Procedure); Mallory v. Norfolk Southern R. Co., 600 U. S. 122, 144, and
n. 10 (2023) (plurality opinion) (personal jurisdiction); Mitsubishi Motors
Corp. v. Soler Chrysler-Plymouth, Inc., 473 U. S. 614, 640 (1985) (holding
that agreement to arbitrate is enforceable); The Bremen v. Zapata Off-
Shore Co., 407 U. S. 1, 15 (1972) (holding that forum-selection clause is
enforceable).

9 Cite as: 608 U. S. ____ (2026)
T
HOMAS, J., dissenting
second-degree murder and testify against his co-conspira-
tors in exchange for the State’s promise to drop a first-de-
gree murder charge. Id., at 3. The defendant was sen-
tenced for second-degree murder. Id., at 4. During the
retrial for his co-conspirator, the Court held, the defendant
faced a “choice”: “He could submit to the State’s request
that he testify at the retrial . . . or . . . his breach of the
agreement would restore the parties to their original posi-
tions and he could be prosecuted for first-degree murder.”
Id., at 11. The defendant decided not to testify, and he was
prosecuted and convicted for first-degree murder. The
Court upheld this conviction, concluding that the State
could “enforce the agreement.” Id., at 12.
Accordingly, when defendants waive their statutory ap-
peal rights in plea agreements, those waivers are enforcea-
ble. Given that defendants can waive constitutional rights
gratuitously, they can certainly waive statutory rights in
exchange for enforceable benefits in plea agreements—such
as the sentencing recommendation in Santobello. And, if
defendants are bound by gratuitous waivers, they can also
be held to ones from which they benefited—such as the
promise to testify in Ricketts. Bargained-for waivers of stat-
utory rights thus not only are valid; they must be enforced
to ensure that both sides to the agreement receive what
they bargained for.
5
A defendant who waives his statutory
appeal right in a plea agreement is therefore “bound by the
decision.” Garza, 586 U. S., at 257 (T
HOMAS, J., dissenting).
The defendant remains bound even though he cannot
know exactly what his sentence will be when he signs his
waiver. When the defendant knowingly agrees to waive his
appeal right, his waiver is knowing precisely because he is
made aware of the uncertainty. See Fed. Rule Crim. Proc.
——————
5
Because plea agreements involve an exchange of promises, this Court
has often analogized plea agreements to contracts. See, e.g., Puckett v.
United States, 556 U. S. 129, 137 (2009).

10 HUNTER v. UNITED STATES
T
HOMAS, J., dissenting
11(b)(1) (requiring the court to ensure the defendant “un-
derstands” the appeal waiver and the variability of the pos-
sible sentence). Many other waivers entail similar uncer-
tainties. For instance, every plea agreement waives the
right to trial. And, defendants remain bound by their plea
even when later developments could lead them to regret
their waiver in retrospect. See Brady v. United States, 397
U. S. 742, 756–757 (1970) (holding that guilty pleas are en-
forceable even after a favorable change in law); United
States v. Ruiz, 536 U. S. 622, 629–630 (2002) (holding that
guilty pleas are enforceable even after it is discovered that
the Government withheld impeachment evidence); Tollett
v. Henderson, 411 U. S. 258, 266–267 (1973) (holding that
guilty pleas are enforceable even after it is discovered that
the defendant would have had a claim based on an uncon-
stitutionally selected grand jury).
At every stage, defendants waive rights despite uncer-
tainty about the consequences. A defendant of course “may
waive his right to remain silent, his right to a jury trial, or
his right to counsel even if the defendant does not know the
specific questions the authorities intend to ask, who will
likely serve on the jury, or the particular lawyer the State
might otherwise provide.” Ruiz, 536 U. S., at 629–630. A
defendant has long been able to waive a wide range of pro-
cedural rights, such as the right to an arraignment or the
right to object to jurors or the right to challenge the consti-
tutionality of the grand jury, “no matter how much this may
subsequently prejudice him.” F. Wharton, Criminal Plead-
ing and Practice §733, p. 504 (9th ed. 1889).
B
These well-established principles required dismissal of
Hunter’s appeal. Hunter knowingly and voluntarily en-
tered into his plea agreement, which contained an express
appeal waiver. The text of the appeal waiver barred all sen-
tencing appeals. It included two exceptions that, all agree,

11 Cite as: 608 U. S. ____ (2026)
T
HOMAS, J., dissenting
are not implicated here. The District Court carefully en-
sured that Hunter had full awareness of the appeal waiver’s
consequences. Hunter stood in open court, was asked by a
judge whether he understood that he was “waiving or giving
up [his] right to appeal,” and answered “Yes, Your Honor.”
App. 12. Further, the plea agreement rested on mutually
beneficial promises from both Hunter and the Government:
Hunter would plead guilty and would not appeal except in
limited circumstances, and the Government would dismiss
nine counts and reduce Hunter’s maximum sentencing ex-
posure by 270 years. The Government then upheld its end
of the bargain.
If Hunter wants to retain the significant benefits he re-
ceived through his plea agreement, he cannot renege on the
agreement now.
6
Hunter waived his right to appeal, and
his claim is covered by his appeal waiver, which he know-
ingly and voluntarily agreed to as part of an enforceable
plea agreement. See Garza, 586 U. S., at 251 (T
HOMAS, J.,
dissenting). It is irrelevant that he may not have expected
one particular supervised-release condition when he signed
the agreement.
7
——————
6
Hunter may well come to regret seeking to appeal his sentence after
a favorable deal. As both counsel conceded and the Court does not dis-
pute, the Government can generally seek to void plea agreements in their
entirety after defendants breach appeal waivers, which may enable the
Government to allege a breach and seek convictions on the dropped
counts. Tr. of Oral Arg. 6–7, 60–61; see also App. to Pet. for Cert. 7a.
7
In any event, Hunter should not have been surprised by the mental-
health-treatment supervised-release condition that he now challenges.
While his appeal was pending, Hunter filed a separate motion to vacate
his sentence, claiming that his “history of autism and cognitive disorders
called into question the validity of his guilty plea.” No. 4:23–cr–00085
(SD Tex.), ECF Doc. 179, p. 5. Hunter described himself as a “severely
impaired individual” and noted that it had been “extensively shown”
throughout the litigation that he had mental health problems. Id., at
13–14.

12 HUNTER v. UNITED STATES
T
HOMAS, J., dissenting
III
The Court does not dispute these principles; it just cre-
ates an exception to them. Although Hunter’s briefing in
this Court primarily argued that various contract-law prin-
ciples excused him from his waiver, the Court wisely does
not endorse that theory; it does not even mention it.
8
In-
stead of importing contract-law defenses, the Court creates
a free-floating “miscarriage-of-justice” exception, which
permits appeals despite valid appeal waivers when any of
at least four different factual scenarios arise at sentencing.
Ante, at 12–13.
The Court, however, fails to identify any basis in law for
its exception. It identifies no constitutional text, statute, or
Federal Rule of Criminal Procedure that even suggests its
miscarriage-of-justice exception. And, it identifies no estab-
lished common-law or equitable doctrine that resembles it.
The Court instead grounds its exception in the need to avoid
“bring[ing] the judicial system into disrepute.” Ante, at 1,
11. Because federal courts have a “role . . . in approving and
implementing appeal waivers,” the Court argues, this
Court must create appropriate rules for enforcing them,
——————
8
Hunter argued that a plea agreement is a contract and that an amal-
gamation of various contract-law doctrines—including voidness for pub-
lic policy, unconscionability, frustration of purpose, and the implied duty
of good faith—made his appeal waiver an unenforceable contract. See
Brief for Petitioner 9–34; Tr. of Oral Arg. 46 (noting that Hunter went
“all in on this contract thing”). Hunter claims that the “best” contract-
law principle going for him “is frustration of purpose.” Tr. of Oral Arg.
13. But, the frustration-of-purpose doctrine requires that postagreement
developments render the contract “virtually worthless” before they void
a contract. Restatement (Second) of Contracts §265, Comment a (1979).
The plea agreement was not rendered worthless when the District Court
included a mental-health treatment supervised-release condition. The
plea agreement still achieved a crucial purpose for Hunter—it reduced
his maximum exposure from 10 counts and 300 years to 1 count and 30
years. Hunter’s other contract-law arguments are further afield, and it
is also unclear what role contract law could even play when the defend-
ant has also waived the right in court.

13 Cite as: 608 U. S. ____ (2026)
T
HOMAS, J., dissenting
which should advance the court system’s own “‘institu-
tional interest.’” Ante, at 8–9.
9
Of course, the Court’s desire for a particular legal rule
does not give it the right to create it. “Our duty is to apply
the law, not to make it.” Pine Grove v. Talcott, 19 Wall. 666,
677 (1874). Thus, concerns about public perception of the
judiciary provide no justification for the Court’s decision.
The power to change the law to avoid outcomes that the
people do not like “lies with the people, and not with the
judiciary.” Ibid.
——————
9
The Court does not claim that any traditional common-law doctrine
supports its miscarriage-of-justice exception. Instead, it recognizes itself
as creating a new rule based on its authority over the lower courts that
administer plea agreements and its policy and institutional concerns.
Ante, at 8–13 (majority opinion).
J
USTICE BARRETT, for her part, adopts a sounder methodology. See
ante, at 1 (concurring opinion). But, in my view, the common-law-of-
waiver principles she invokes cannot justify this decision either for sev-
eral reasons. First, if today’s decision could be justified as an act of com-
mon-law finding rather than policymaking, one would expect to find a
more robust tradition of decisions applying a similar rule in similar sit-
uations. Yet, neither J
USTICE BARRETT nor the Court can point to any.
See infra, at 22–23. Second, JUSTICE BARRETT cites authorities explain-
ing that certain rights may never be waived. Ante, at 2; see infra, at 22.
That general principle is true as far as it goes. But, common-law doc-
trines require rules with identifiable content for judges to apply, not only
general principles. It is not entirely clear how the general principle that
some rights cannot be waived leads to the Court’s granular rule under
which appeals can be waived, but those waivers become void if any of
four specific factual scenarios later occur at sentencing. Third, this body
of law precluded waivers of certain procedures that implicated the “sub-
stantial” features “of the legal tribunal” or the “fundamental mode of its
proceeding.” R. Bowers, Law of Waiver §397, p. 394 (1914). It is not clear
to me that appeals of sentencing errors—appeals that did not even exist
until 100 years after the founding and that must be asserted by the de-
fendant—are sufficiently fundamental to criminal procedure for these
doctrines to have any purchase. In any event, Hunter never developed
an argument along these lines, which may explain why the Court, on my
reading, declined to adopt it.

14 HUNTER v. UNITED STATES
T
HOMAS, J., dissenting
To the extent that one can infer any source of law from
the Court’s opinion, it appears to be its so-called supervi-
sory power over lower federal courts. See Tr. of Oral Arg.
97–99, 116–118. The Court’s reasoning today is reminis-
cent of its precedents purporting to exercise that power.
Like the Court’s decision today, see ante, at 10–12, these
supervisory-power decisions have justified themselves
based on general “considerations of justice not limited to the
strict canons” of law. McNabb v. United States, 318 U. S.
332, 341 (1943). And, like the Court’s decision today, see
ante, at 1, 9–11, prior supervisory-power decisions have jus-
tified themselves based on “public perception of the integ-
rity” of the courts. Young v. United States ex rel. Vuitton et
Fils S. A., 481 U. S. 787, 811 (1987) (plurality opinion).
Thus, though the Court conspicuously avoids mentioning
its name, the supervisory power appears to be the only con-
ceivable source of authority for the Court’s decision.
The supervisory power of the Supreme Court, however,
cannot justify the Court’s miscarriage-of-justice exception
for four reasons. First, it is doubtful that the power exists.
Second, even if it did, it still would not extend to vitiating
provisions in valid plea agreements, as the Court’s rule ef-
fectively does. Third, the congressionally authorized rule-
making process has addressed appeal waivers, so this Court
should not circumvent that process. Finally, the two prec-
edents that the Court relies on as justifying a miscarriage-
of-justice exception do no such thing. In the end, the Court
has nothing but policy arguments, but even there, its anal-
ysis is unpersuasive.
A
The Court has never identified a source for its alleged
general supervisory power to dictate to lower courts proce-
dural rules not required by the Constitution, Congress, or
the Federal Rules. Cf. United States v. Tsarnaev, 595 U. S.
302, 315, and n. 1 (2022). Like Justice Scalia, “I do not see

15 Cite as: 608 U. S. ____ (2026)
T
HOMAS, J., dissenting
the basis for any direct authority to supervise lower courts.”
Bank of Nova Scotia v. United States, 487 U. S. 250, 264
(1988) (concurring opinion); see also Western Pacific R.
Corp. v. Western Pacific R. Co., 345 U. S. 247, 273 (1953)
(Jackson, J., dissenting) (describing “this Court’s exercise of
its vague supervisory powers over federal courts”). Instead,
“the Constitution’s structure cuts against, and history rules
out, the proposition that the Supreme Court possesses in-
herent supervisory power over inferior court procedure.” A.
Barrett, The Supervisory Power of the Supreme Court, 106
Colum. L. Rev. 324, 387 (2006).
The Court “has been remarkably vague about the source
of its supervisory authority.” Id., at 333. The Court’s first
exercise of this power came in McNabb v. United States, 318
U. S. 332 (1943). That decision asserted that this Court can
“formulat[e]” rules for lower courts based on “considera-
tions of justice not limited to the strict canons” of the law.
Id., at 341. This new assertion of power looked nothing like
traditional, unwritten procedural law, in which judges
merely applied rules whose content had long been settled
by common-law authorities. Instead, when the Court exer-
cised this new supervisory power, it “self-consciously for-
mulate[d] its own standard.” Barrett, 106 Colum. L. Rev.,
at 376.
10
As legal justification for this novel approach, the
——————
10
The supervisory power is thus distinct from two legitimate traditions
of unwritten procedural law, neither of which provide any support for the
Court’s holding today. First, the Court has recognized that courts have
“ ‘inherent’ ” and “ancient” authority to manage their own courtroom and
enforce their orders. Link v. Wabash R. Co., 370 U. S. 626, 630 (1962).
For example, courts in some circumstances have inherent authority to
sanction parties, ibid., or to stay proceedings, Landis v. North American
Co., 299 U. S. 248, 254 (1936). Second, courts can enforce general com-
mon-law or equitable procedural rules with an “identifiable content . . .
settled by tradition or emergent consensus.” A. Barrett, Procedural Com-
mon Law, 94 Va. L. Rev. 813, 884 (2008). For example, doctrines of pre-
clusion may derive from longstanding common-law principles. See ibid.

16 HUNTER v. UNITED STATES
T
HOMAS, J., dissenting
McNabb Court provided an analysis-free string cite of prior
decisions, but none of them provided for anything like the
modern supervisory power. R. Pushaw, The Inherent Pow-
ers of Federal Courts and the Structural Constitution, 86
Iowa L. Rev. 735, 780–781, and n. 242 (2001) (analyzing the
cited cases); see McNabb, 318 U. S., at 341. In short, the
supervisory power had a late and unconvincing start.
The supervisory power’s only “arguable basis” in the Con-
stitution’s text comes from its “establishment of this Court
as ‘supreme,’ as distinct from the ‘inferior Courts’ that Con-
gress has discretion to create.” Tsarnaev, 595 U. S., at 326
(B
ARRETT, J., concurring). But, that aspect of Article III’s
structure does not justify a general supervisory power.
That this Court is in some respects “supreme” over other
federal courts—we review their judgments—does not re-
motely entail “that the Constitution requires across-the-
board subordination of inferior courts” to the Supreme
Court. Barrett, 106 Colum. L. Rev., at 365. Instead, any
“viable claim to supervisory authority” over an area of law
must be “rooted in history.” Id., at 366.
History does not suggest that the Supreme Court has in-
herent authority to create new procedural rules for lower
federal courts, either. At the founding, consistent practice
revealed “that the framers viewed the establishment of
rules of procedure as a legislative function” that was some-
times explicitly “delegated by Congress to the courts.” S.
Beale, Reconsidering Supervisory Power in Criminal Cases:
Constitutional and Statutory Limits on the Authority of the
Federal Courts, 84 Colum. L. Rev. 1433, 1467 (1984); cf. 3
J. Story, Commentaries on the Constitution of the United
States §§1752, 1768 (1833) (explaining that “it is for con-
gress alone to furnish the rules of proceeding, to direct the
——————
The Court makes no claim that its miscarriage-of-justice exception is
necessary for managing its own courtroom or has been derived from any
established common-law doctrine.

17 Cite as: 608 U. S. ____ (2026)
T
HOMAS, J., dissenting
process, to declare the nature and effect of the process,”
while courts have “incidental powers” to regulate only in-
ternal matters, such as their “own officers” and disruptions
to the judicial process). Early Congresses prescribed many
procedural rules for federal courts, required them to follow
state law on other procedural matters, and often delegated
to the Supreme Court the authority to formally promulgate
additional procedural rules. W. Baude, J. Goldsmith, J.
Manning, J. Pfander, & A. Tyler, Hart and Wechsler’s The
Federal Courts and the Federal System 727–733 (8th ed.
2025); Wayman v. Southard, 10 Wheat. 1, 22–23, 42–45
(1825); Judiciary Act of 1789, 1 Stat. 81–90; Process Act of
1789, ch. 21, 1 Stat. 94; Process Act of 1792, 1 Stat. 276. It
was “not until the twentieth century” that this Court
“claimed the right to prescribe procedure for inferior federal
courts” while deciding cases and controversies—instead of
acting under a delegated rulemaking authority. Barrett,
106 Colum. L. Rev., at 387. History thus provides no sup-
port for the Court’s inherent supervisory authority to create
a new rule invalidating appeal waivers.
11
B
Even if this Court had a general supervisory power, it
could not justify the Court’s new miscarriage-of-justice
——————
11
The Rules Enabling Act has further undermined any argument for
the supervisory power. The Act expressly delegates rulemaking power
to the Supreme Court subject to a comprehensive process for exercising
it, complete with the creation of Rules Committees to consider and de-
velop new rules in a particular way. 28 U. S. C. §2073. Even if the Court
had inherent authority to supervise lower courts in the absence of Con-
gressional action, it “may well be that the detailed scheme of supervisory
rulemaking prescribed by the Rules Enabling Act extinguishes the
Court’s ability to act outside that process.” A. Barrett, The Supervisory
Power of the Supreme Court, 106 Colum. L. Rev. 324, 387 (2006); see
Mohawk Industries, Inc. v. Carpenter, 558 U. S. 100, 115 (2009) (T
HOMAS,
J., concurring in part and concurring in judgment) (explaining that Con-
gress “ ‘designat[ed] rulemaking, “not expansion by court decision,” as
the preferred means of determining’ ” judicial procedures).

18 HUNTER v. UNITED STATES
T
HOMAS, J., dissenting
exception to appeal waivers. The supervisory power
“deal[s] strictly with the courts’ power to control their own
procedures,” but does not authorize setting substantive
standards. United States v. Williams, 504 U. S. 36, 45–47
(1992). When it has been invoked, it has had the more lim-
ited scope of protecting judicial “proceedings,” Degen v.
United States, 517 U. S. 820, 823 (1996), through “rules of
evidence and procedure that are binding” in lower courts,
Dickerson v. United States, 530 U. S. 428, 437 (2000). The
typical supervisory power cases thus govern issues related
to trial administration, such as jury selection rules and pro-
cesses, Thiel v. Southern Pacific Co., 328 U. S. 217, 225
(1946); Rosales-Lopez v. United States, 451 U. S. 182, 192
(1981) (plurality opinion), warnings to pro se litigants of the
consequences of their actions, Castro v. United States, 540
U. S. 375, 382–383 (2003), the introduction of certain
tainted evidence, McNabb, 318 U. S., at 345, or the appoint-
ment of a prosecutor in contempt proceedings, Young, 481
U. S., at 808–809. Likewise, when addressing appellate
courts, the supervisory power has been used to require clear
explanations to litigants of en banc rehearing procedures.
Western Pacific R. Corp., 345 U. S., at 267–268.
The Court’s decision today exercises a different kind of
power. Hunter maintains that his plea agreement is a bind-
ing contract, and the appeal waiver it includes is generally
enforceable as a matter of contract law. See Brief for Peti-
tioner 2, 32; Tr. of Oral Arg. 44. In ruling for him, the Court
therefore appears to empower lower courts to rewrite an
otherwise binding agreement made by two parties. The
parties agreed to permit appeals only for sentences that ex-
ceed the statutory maximum or that were tainted by inef-
fective assistance of counsel. Now, the Court has revised
that contract and the waiver so that the defendant can also
appeal a sentence after a miscarriage of justice. The power
to supervise the federal courts’ own internal processes can-
not justify such an act.

19 Cite as: 608 U. S. ____ (2026)
T
HOMAS, J., dissenting
The Court tries to solve this problem through an indirect
chain of reasoning. Plea agreements are approved by dis-
trict courts, and the process by which they do so, the Court
says, involves a measure of discretion. Ante, at 8–9. Thus,
the Court continues, the question whether to enforce an ap-
peal waiver in a plea agreement, once under consideration
in the court of appeals, is linked to the district court’s initial
discretionary process to approve the agreement itself. Ante,
at 9. So, the Court seems to think, it follows that the Su-
preme Court has inherent supervisory power to prescribe
rules for enforcing appeal waivers in the courts of appeals,
flowing from its ability to supervise that initial plea agree-
ment approval process in the district courts.
That logic overlooks what is at issue here. The Court’s
supervisory authority may have been understood to reach
the judicial procedure for accepting the plea agreement it-
self, see McCarthy v. United States, 394 U. S. 459, 464
(1969), but it does not follow that it includes the power to
change the substantive provisions of valid plea agreements
once they have been approved and made binding. This case
illustrates the problem: Hunter is not challenging anything
related to the District Court’s approval of his plea agree-
ment. To the contrary, he seems to hope that the agreement
is still binding, as he suggests that he would resist any ef-
fort by the Government to reinstate the nine counts it
dropped. See Tr. of Oral Arg. 6–7. He instead simply wants
the agreement changed by the Court of Appeals to permit
his appeal. But, the supervisory power does not permit ei-
ther rewriting the parties’ contract or changing plea-bar-
gaining law.
12
——————
12
The Court cannot escape this problem by framing its rule as address-
ing the enforceability of the agreement. Generally, the question
“whether a particular agreement is enforceable” has been understood as
“one of substance, not procedure.” Bassidiji v. Goe, 413 F. 3d 928, 936
(CA9 2005); MediaNews Group, Inc. v. McCarthey, 494 F. 3d 1254, 1260

20 HUNTER v. UNITED STATES
T
HOMAS, J., dissenting
C
Even if the Court could recharacterize its rule as proce-
dural, it was not the Court’s place to promulgate it. The
committee responsible for developing the Federal Rules of
Criminal Procedure has declined to advance a rule like this
one, and Congress established that rulemaking process to
evaluate the costs and benefits of various policy proposals.
“Whatever the scope” of this Court’s supervisory power,
it does not include “the power to . . . circumvent” the Fed-
eral Rules of Criminal Procedure. Carlisle v. United States,
517 U. S. 416, 426 (1996); see Tsarnaev, 595 U. S., at 315–
316. The Rules Enabling Act establishes a reticulated pro-
cess for this Court to alter lower courts’ procedures. In this
process, the Judicial Conference’s Rules Committees recom-
mend Rules of practice, procedure, and evidence after an
extensive public process, 28 U. S. C. §2073, so that the
Rules “dra[w] on the collective experience of bench and bar,”
Mohawk Industries, Inc. v. Carpenter, 558 U. S. 100, 114
(2009). Then, before the Supreme Court adopts the recom-
mendations as binding rules, it must first transmit them to
Congress. §2074. Because this process enables “thorough”
consideration of the policy issues, this Court is ill equipped
to second-guess those policy judgments while it is merely
hearing one case. Shannon v. United States, 512 U. S. 573,
587 (1994) (describing statutes). Recent involvement by the
Rules Committee on an issue therefore “counsels hesitation
in invoking our supervisory powers.” Ibid.
The Rules Committee has recently addressed appeal
waivers. In fact, it has paid close attention to them, ad-
vanced rules in this area, and declined to adopt a rule like
——————
(CA10 2007) (similar); cf. Perry v. Thomas, 482 U. S. 483, 492–493, n. 9
(1987) (noting that validity, revocability, and enforceability of contracts
are generally state-law questions in federal court); Chalk v. T–Mobile
USA, Inc., 560 F. 3d 1087, 1092 (CA9 2009) (holding that “unconsciona-
bility” is a state-law question); Hines v. National Entertainment Group,
LLC, 140 F. 4th 322, 327–328 (CA6 2025) (similar).

21 Cite as: 608 U. S. ____ (2026)
T
HOMAS, J., dissenting
the Court’s. In 1996, the Rules Committee proposed what
is now Federal Rule of Criminal Procedure 11(b)(1)(N),
which requires district courts to explain appeal waivers to
the defendant before accepting a plea agreement containing
one. See N. King & M. O’Neill, Appeal Waivers and the
Future of Sentencing Policy, 55 Duke L. J. 209, 222 (2005).
Some immediately objected that such a rule would imply
general acceptance of appeal waivers, which they opposed
because of the risk that significant trial-judge errors would
be shielded from review. Id., at 222–223. The Rules Com-
mittee approved the recommendation anyway, which this
Court accepted and Congress allowed. Appeal waivers, now
seemingly approved of by the Federal Rules, continued to
become more prevalent. Id., at 224.
13
The Rules Committee
has remained focused on appeal waivers in the years since.
In 2015, the Committee heard a proposal to prevent courts
from accepting appeal waivers before sentencing. Advisory
Committee on Criminal Rules, Draft Minutes, pp. 37–38
(Mar. 16–17, 2015). But, the Committee unanimously
agreed not to pursue it. Ibid. And, at the meeting earlier
this year, a member proposed requiring further disclosure
to defendants about the consequences of appeal waivers.
Advisory Committee on Criminal Rules, Minutes, pp. 71–
72, (Jan. 6, 2026) (noting it was taken under advisement).
But, even after hearing such proposals, the Rules Commit-
tee has not advanced any recommendation to preclude de-
fendants from waiving certain appeals.
By effectively legislating a new rule in this area, the
Court intrudes on the calibrated policymaking process es-
tablished by the Rules Enabling Act. The Rules Committee
stands equipped to weigh policy tradeoffs, collect data, en-
gage in a “thorough and exhaustive review” of the issue, and
——————
13
Although the Advisory Committee said that it was not taking a posi-
tion on the validity of appeal waivers, the new Rule in practice “solidi-
fied” them. K. Bennardo, Post-Sentencing Appellate Waivers, 48 U.
Mich. J. L. Reform 347, 358–359, n. 59 (2015).

22 HUNTER v. UNITED STATES
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HOMAS, J., dissenting
craft a rule that achieves fairness for all parties. Shannon,
512 U. S., at 587. Therefore, this Court should have “hesti-
tat[ed]” before creating a new rule that the Rules Commit-
tee “could have included” in its deliberations on appeal
waivers, but ultimately “chose not to.” Ibid.
D
Finally, the sparse precedents that the Court relies on do
not justify its miscarriage-of-justice exception. See ante, at
9–10.
In Mezzanatto, 513 U. S. 196, a defendant sought to be
excused from his waiver of certain evidentiary protections.
The District Court held him to his waiver. The defendant
was convicted, and on appeal, this Court upheld the convic-
tion and the enforcement of the waiver. Id., at 199, 210–
211. Mezzanatto’s holding, then, provides no support for
the Court’s exception that it creates today. In fact, Mezza-
natto’s reasoning emphasized that “we have presumed that
statutory provisions are subject to waiver,” and that waiv-
ers of evidentiary protections are “‘liberally enforced.’” Id.,
at 201, 202. So, the Court today must turn to a single par-
agraph of dicta in Mezzanatto, which suggested that
“[t]here may be some evidentiary provisions that are so fun-
damental to the reliability of the factfinding process that
they may never be waived,” before concluding that no such
provision was implicated. Id., at 204. In its decision today,
however, the Court makes clear that it does not believe that
the right to appeal a sentence is so fundamental that it
“may never be waived.” See ante, at 11–13. The Court in-
stead confirms that the right to appeal almost always can
be waived, but the waiver becomes unenforceable in the
rare circumstance of a miscarriage of justice. Because Mez-
zanatto’s dicta addresses only protections that can never be
waived, it cannot support the Court’s rule.
In Wheat v. United States, 486 U. S. 153 (1988), this
Court declined to enforce a different kind of waiver, but it

23 Cite as: 608 U. S. ____ (2026)
T
HOMAS, J., dissenting
did so based on a requirement in the Federal Rules. There,
a defendant sought to retain counsel who was currently rep-
resenting his co-conspirators. The Government objected to
the joint representation due to the risk of a conflict of inter-
est. Brief for United States in Wheat v. United States, O. T.
1987, No. 87–4, pp. 3, 7. The defendant waived his right to
a conflict-free counsel. The District Court refused to accept
the waiver and rejected the defendant’s choice of counsel.
This Court affirmed. Central to its reasoning, the Court
explained that “the Federal Rules of Criminal Procedure di-
rect trial judges to investigate specially” cases with joint
representations that may create conflicts of interest “‘to
protect each defendant’s right to counsel.’” Wheat, 486
U. S., at 161 (quoting Fed. Rule Crim. Proc. 44(c)). The
Notes of the Advisory Committee even suggested that a dis-
trict court could order that defendants be separately repre-
sented. 486 U. S., at 161. So, the Court affirmed a District
Court for doing what the Federal Rules called for. But,
here, the Court remands for evaluation of whether enforce-
ment of a waiver will result in a miscarriage of justice, even
though the Federal Rules say nothing about miscarriages
of justice.
E
Without any legal justification for its rule, the Court ap-
peals primarily to the policy instinct that unfairness could
result from its farfetched hypotheticals. Surely, the Court
reasons, a defendant must be able to appeal a sentence se-
lected by an orangutan. Ante, at 10–11. I disagree with any
insinuation that the only thing stopping federal judges from
violating their oaths is the possibility of a sentencing ap-
peal. I also disagree with the assumption that the problem
of possibly erroneous trial courts can only be solved by pos-
sibly erroneous appellate judges. The Government even
notes that it can decline to enforce waivers if an egregious
injustice occurs. Brief for United States 31. There were no

24 HUNTER v. UNITED STATES
T
HOMAS, J., dissenting
criminal appeals for over 100 years of American history,
and our legal system did not descend into chaos.
Moreover, the Court’s policy reasoning overlooks im-
portant drawbacks to its approach. For one thing, it is not
obvious that this rule will provide fairness to defendants.
After all, “in the long term,” uncertainty about whether an
appeal waiver will be enforced “eliminate[s] a bargaining
tool to convince the government to drop pending charges.”
Portis v. United States, 33 F. 4th 331, 336 (CA6 2022). De-
fendants like Hunter, therefore, may have to forgo other
valuable consideration to obtain similarly lenient sen-
tences. A “sounder” approach is “to permit the interested
parties to enter into knowing and voluntary negotiations
without any arbitrary limits on their bargaining chips.”
Mezzanatto, 513 U. S., at 208. For another, the Court’s ap-
proach may lead to a flood of new meritless sentencing ap-
peals. One study concluded that, as of 2003, 65% of plea
agreements in federal cases contained appeal waivers.
King, 55 Duke L. J., at 231. Of agreements with a waiver,
80% waived both direct appeals and collateral attacks un-
der §2255. Id., at 243. If these numbers have remained
steady over the two decades since—and I have no reason to
doubt it—the consequences of today’s decision for the fed-
eral courts of appeals are sobering. Last year, over 76,000
defendants pleaded guilty. Admin. Office of the U. S.
Courts, U. S. District Courts–Criminal Statistical Tables
for the Fed. Judiciary (2026) (Table D–4). Over the last 10
years, more than 680,000 defendants have pleaded guilty.
14
Between defendants who can appeal and prisoners who can
collaterally attack already-final sentences, it is not hard to
imagine a hundred thousand claims that should be barred
by waivers that will now be filed in reliance on the Court’s
exception. The Court’s efforts to keep this exception narrow
——————
14
Admin. Office of the U. S. Courts, U. S. District Courts–Criminal
Statistical Tables for the Fed. Judiciary (2015–2025) (Table D–4).

25 Cite as: 608 U. S. ____ (2026)
T
HOMAS, J., dissenting
may make it hard to succeed on these claims, accord, ante,
at 1 (K
AVANAUGH, J., concurring), but a miscarriage of jus-
tice will always be easy to allege. The courts of appeals will
now have to sift through many appeals even though miscar-
riages of justice are, as the Court admits, “rare.” Ante, at
13 (majority opinion).
Ultimately, though, how I weigh the tradeoffs between
the risk of a rogue district court judge issuing a lawless sen-
tence, the diminished utility of the appeal-waiver bargain-
ing chip, and the potential flood of new appeals should not
matter. In the absence of a legal principle saying otherwise,
Hunter’s plea agreement and appeal waiver are valid and
should be enforced.
IV
Hunter knowingly and voluntarily agreed to waive his
appeal rights, and the exceptions he preserved are not im-
plicated here. Accordingly, I would enforce his agreement
and dismiss his appeal. I respectfully dissent.