Does a plea agreement with an appeal waiver waive the right to obtain a remand requiring the district court to actually consider the defendant's mitigation arguments?

QUESTION PRESENTED Petitioner Frank Odom, Jr., entered into a plea agreement that contained a waiver of his right “to contest either the conviction or the sentence in any direct appeal.” [App. 5]. In connection with his sentencing, Mr. Odom made a motion that the district court consider a reduced sentence, either via U.S.S.G. § 5H1.6 or under 18 U.S.C. § 3553(a), given his caretaking responsibilities for one of his children who is developmentally delayed and has both cerebral palsy and epilepsy. See, e.g., [App. 36-37]. The district court never ruled on the motion nor explicitly acknowledged that it had actually considered the request before imposing a 72-month sentence. See [App. 32-34]. Mr. Odom appealed to the Fourth Circuit. He asked the Fourth Circuit to grant him specific performance of the implied promise contained in the appeal waiver of his plea agreement: that while he would abide by the district court’s ultimate disposition of his arguments at sentencing, the district court would in fact consider his arguments. The Fourth Circuit dismissed the appeal in a brief opinion that assumed without deciding that the district court had not actually considered Mr. Odom’s mitigation arguments. See [App. 2-3]. It held that that issue fell within the scope of the appeal waiver and was, therefore, not appealable. The question presented in this petition is the following: Does a plea agreement with an appeal waiver waive the right to obtain a remand requiring the district court to actually consider the defendant’s mitigation arguments? i