Is an Appeal Waiver Valid If the Plea Deal Gave You Nothing?

Update (October 2026): In June 2026, the Supreme Court held that an appeal waiver cannot be enforced when enforcing it would cause a "miscarriage of justice." The Court called this a high bar, limited to obvious and serious errors. Hunter v. United States, 608 U.S. 713 (2026).

If a plea deal gave you nothing in exchange for giving up your appeal, a court may refuse to enforce the waiver. In United States v. Lutchman, 910 F.3d 33 (2d Cir. 2018), the Second Circuit held that an appeal waiver must be supported by "consideration," meaning the defendant must get something of value from the government in return.

A plea deal can help you avoid the maximum sentence. But the government usually holds the stronger hand, and most plea deals require you to give up your right to appeal your sentence.

What Is an Appeal Waiver?

Appeal Waiver

An appeal waiver is a promise in a plea deal that you will not appeal your sentence, or will appeal only in limited situations. It matters a great deal to anyone facing a long sentence, yet the government usually treats it as standard boilerplate, and courts rarely look closely at what you got in return.

The Facts of Lutchman

Lutchman is unusual because the appeals court looked at an appeal waiver and sided with the defendant. Usually, it is hard to raise any issue on appeal after signing a waiver as part of a plea deal.

Lutchman pleaded guilty to conspiring to provide material support to a foreign terrorist organization. His plea agreement waived his right to appeal any sentence up to the statutory maximum. He was sentenced to that maximum: 20 years in prison and 50 years of supervised release.

What the Second Circuit Decided

On appeal, the court noted that the plea agreement gave Lutchman no real benefit. He got no reduction in prison time for pleading guilty and waiving his appeal.

Because the agreement was not supported by consideration, the court refused to enforce the waiver. Instead of throwing out the whole plea agreement, it cut out (severed) just the appeal waiver and heard his challenge to the harshness of his sentence. Getting the appeal heard despite the waiver was a significant win.

On the merits, though, the court found his sentence was not unreasonable given his conduct, and it affirmed. Still, the court took a significant step to protect appeal rights by recognizing that an appeal waiver cannot hold up when the defendant gets no benefit at sentencing in exchange.

What This Means for You

Courts still generally enforce appeal waivers that are knowing and voluntary, so Lutchman remains an unusual case. It does show that a waiver is not always the end of the road.

When this post was written, many defense advocates praised courts for looking harder at plea deals. It stands to reason that you should get something of value for giving up your appeal rights. If more courts look closely at plea terms, more defendants may get a chance to challenge harsh sentences.

The case may also signal a shift in how federal courts treat plea waivers. Either way, it is a warning to defendants and lawyers to take waivers seriously, even when the government seems to gloss over them.

Before you sign, your lawyer should explain clearly what rights you are giving up and what you are getting in return.

Challenging an Appeal Waiver

If you think you cannot appeal because your plea deal included an appeal waiver, talk to a criminal defense lawyer soon. There may still be a way to appeal. The waiver may not apply to your issue, or it may not be enforceable. Act quickly: in a federal criminal case, a notice of appeal is generally due within 14 days after judgment is entered. Fed. R. App. P. 4(b)(1)(A).

Facing a federal sentence? Book a consultation to talk it through with Brandon Sample.