Whether a defendant who pleads guilty and appeals his sentence, challenging his appeal waiver as unknowing, must show both that the waiver was unknowing and that he would not have entered the plea if he had understood the waiver

QUESTION PRESENTED Whether a defendant who pleads guilty and appeals his sentence, challenging his appeal waiver as unknowing, must show both that the waiver was unknowing and that “he would not have entered the plea” if he had understood the waiver. United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004) (emphasis added). “There is a circuit split on this issue.” United States v. Kochonies, 827 F. App’x 108, 111 n.3 (2d Cir. 2020). Four circuits hold explicitly that Dominguez Benitez does not apply in this context: to defeat the waiver, the defendant need only show he “did not knowingly, intelligently, and voluntarily waive his right to appeal.” United States v. Lee, 888 F.3d 503, 508 (D.C. Cir. 2018) (Kavanaugh, J., for the Court). See also United States v. Corso, 549 F.3d 921, 929-30 (3d Cir. 2008); United States v. Murdock, 398 F.3d 491, 496-97 (6th Cir. 2005); United States v. Arellano-Gallegos, 387 F.3d 794, 797 (9th Cir. 2004). Four more circuits implicitly agree. See United States v. Murraye, 596 F. App’x 219, 227 & 229 (4th Cir. 2015); United States v. Aluarado-Casas, 715 F.3d 945, 955-56 (5th Cir. 2013); United States v. Thompson, 770 F.3d 689, 690 & 694 (8th Cir. 2014); United States v. Phanor, 849 F. App’x 909, 910 (11th Cir. 2021). Three circuits disagree. See Pet. App. 1; United States v. Cook, 722 F.3d 477, 482-83 (2d Cir. 2013); United States v. Polak, 573 F.3d 428, 431-32 (7th Cir. 2009); United States v. Tanner, 721 F.3d 1231, 1236 (10th Cir. 2013). And one circuit has confessed its “confusion” over this question. United States v. VillodasRosario, 901 F.3d 10, 12 (1st Cir. 2018). i