Whether an appeal-waiver provision in a plea agreement is enforceable when the agreement provides no actual benefit to the defendant beyond what he would have received by pleading guilty without it.

Plea agreements are governed by traditional contract principles — but unlike ordinary contracts, they involve the waiver of fundamental constitutional rights and demand heightened scrutiny. One such principle is the requirement of consideration. While all circuits agree that plea agreements must be supported by consideration, they are divided on what that means in practice: Must the government’s promises actually confer a benefit the defendant could not otherwise receive, or is it enough that the government makes nominal promises, even if those promises have no practical value? The Second Circuit has held that an appeal waiver is unenforceable when the plea agreement offers the defendant no actual benefit. The Sixth, Tenth, and Eleventh Circuits take a different approach, enforcing appeal waivers even when the government’s promises do not provide anything the defendant could not have received by pleading guilty without an agreement. This entrenched split has significant implications for due process and the integrity of the plea -bargaining system, which resolves the vast majority of federal criminal cases. ii The question presented is: Whether an appeal -waiver provision in a plea agreement is enforceable when the agreement provides no actual benefit to the defendant beyond what he would have received by pleading guilty without it.