Appeal from the United States District Court for the Eastern
District of Michigan at Detroit. No. 2:15-cr-20351-3-Sean F.
Cox, District Judge.
Michael J. Stengel, STENGEL LAW FIRM, Memphis, Tennessee, for
Patricia Gaedeke, UNITED STATES ATTORNEY'S OFFICE,
Detroit, Michigan, for Appellee.
Before: MERRITT, MOORE, and BUSH, Circuit Judges.
J., delivered the opinion of the court in which MERRITT, J.,
joined. BUSH, J. (pp. 11-16), delivered a separate dissenting
NELSON MOORE, Circuit Judge.
Ataya pleaded guilty to one count of conspiracy to commit
healthcare fraud and wire fraud. His plea agreement included
a waiver of his appeal rights. During his plea colloquy,
Ataya acknowledged that he understood that he was waiving
these rights. The district court, however, failed to comply
with Federal Rule of Criminal Procedure 11(b)(1)(J), (K),
(L), and (O) during the colloquy. Ataya now seeks to vacate
his conviction on the grounds that his plea was unknowing due
to these Rule 11 omissions, and asserts that the
appellate-waiver provision in his plea agreement is
unenforceable because of these same errors. For the following
reasons, we hold that Ataya's appellate waiver is
unenforceable, deny the government's motion to dismiss,
and REVERSE his conviction. We
REMAND for further proceedings consistent
with this opinion.
March 2016, Ataya pleaded guilty to one count of conspiracy
to commit healthcare fraud and wire fraud, in violation of 18
U.S.C. § 1349. R. 145 (Plea Agreement at 1) (Page ID
#979). Ataya was a doctor in Michigan who operated Hatem M.
Ataya, M.D., P.C. R. 245 (Plea Hr'g Tr. at 12) (Page ID
#1943). Between 2009 and 2015, Ataya would refer Medicare
beneficiary patients to entities owned or controlled by one
of his co-defendants, purportedly for home health and hospice
services that were, at times, "neither medically
necessary nor provided." Id. at 12-13 (Page ID
#1943-44). These referrals enabled Ataya's co-defendant
to submit false and fraudulent claims to Medicare.
Id. at 13 (Page ID #1944). In exchange for his
referrals, Ataya received kickbacks. Id. at 12 (Page
Ataya's plea hearing, the district court failed to
address a number of considerations that are required under
Federal Rule of Criminal Procedure 11(b)(1). First, "the
district court did not inform Ataya, as Rule 11 requires,
that the plea agreement required him to pay restitution and a
special assessment and to forfeit the proceeds of his
fraud." United States v. Ataya, 869 F.3d 401,
402 (6th Cir. 2017) (citing Fed. R. Crim. P. 11(b)(1)(J),
(K), and (L)). Second, "neither the plea agreement nor
the district court seems to have mentioned that Ataya, who
became a naturalized citizen after the alleged frauds, might
face denaturalization as a result of his conviction."
Id. (citing Fed. R. Crim. P. 11(b)(1)(O)). The
district court did, however, review with Ataya the provision
of his plea agreement in which he waived his right to appeal
and confirmed that Ataya had no questions about the appellate
waiver. R. 145 (Plea Agreement at 11, ¶ 9) (Page ID
#989); R. 245 (Plea Hr'g Tr. at 14-15) (Page ID
#1945-46). The waiver states, in part: "Defendant waives
any right he may have to appeal his conviction on any
grounds. . . . This waiver shall not be construed to bar a
claim by Defendant of ineffective assistance of
counsel." R. 145 (Plea Agreement at 11-12, ¶ 9)
(Page ID #989-90).
district court subsequently sentenced Ataya to ninety-seven
months' imprisonment, followed by three years'
supervised release. R. 205 (J. at 2-3) (Page ID #1595-96).
Ataya was also ordered to pay $4, 119, 711.29 in restitution,
forfeit specific property, and pay a $100 special assessment.
Id. at 5-6 (Page ID #1598-99).
appealed the judgment against him, and the government moved
to dismiss on the basis of the appellate waiver. Reviewing
the government's motion to dismiss, we held that
"[w]hile we agree with the government that Ataya
knowingly waived his appellate rights, we are not convinced
that Ataya entered into the plea agreement as a whole
knowingly and voluntarily." Ataya, 869 F.3d at
402. We instructed the parties to address two issues in their
merits briefs: "whether the plea agreement and the
district court adequately informed Ataya of his plea's
consequences, in particular any possibility of
denaturalization, and if not whether any omissions constitute
plain error." Id. We thus left for future
resolution the government's motion to dismiss.
Waiver of the Right to Appeal
government moved to dismiss this appeal on the basis of the
appellate-waiver provision in Ataya's plea agreement.
Gov't Mot. to Dismiss at 2. In response, Ataya argues
that his waiver was not "knowing and intelligent, "
and thus it is unenforceable. Def. Resp. at 2.
will enforce an appeal waiver included in a plea agreement
when the agreement is made knowingly and voluntarily."
United States v. Morrison, 852 F.3d 488, 490 (6th
Cir. 2017). Ataya "may challenge his waiver of appeal
rights only 'on the grounds that it was not knowing and
voluntary, was not taken in compliance with Fed. R. Crim. P.
11, or was the product of ineffective assistance of
counsel.'" Id. (quoting United States
v. Detloff, 794 F.3d 588, 592 (6th Cir. 2015)).
previously held that "Ataya knowingly waived his
appellate rights. His plea agreement included a broad waiver
provision, and the district court confirmed that Ataya
understood and accepted the waiver's consequences."
Ataya, 869 F.3d at 402. But, [f]or an appellate
waiver to be knowing and voluntary, the defendant . . . must
have entered into the plea agreement as a whole knowingly and
voluntarily." Id. Because "[a] defendant
decides to waive the right to challenge his conviction in
light of his understanding of the conviction's key
consequences[, ] [i]f he misunderstands any of those
consequences, that undermines the knowingness of the
appellate waiver." Id.
we must first determine whether a defendant's appeal is
barred by an appellate-waiver provision before considering
the defendant's arguments on the merits. See,
e.g., Morrison, 852 F.3d at 490. But here
Ataya's argument for why his appeal is not barred by his
waiver of appeal rights is the same as why his conviction
should be vacated: He did not enter into the plea agreement
knowingly due to the district court's Rule 11 error.
Appellant Br. at 9. Because the enforceability of the
appellate waiver stands or falls with the validity of the
agreement, Ataya, 869 F.3d at 402, we must consider
whether the plea agreement as a whole was knowing and
voluntary in order to determine whether Ataya's appeal is
barred by his waiver. United States v.
Portillo-Cano, 192 F.3d 1246, 1250 (9th Cir. 1999)
("[The defendant] is challenging the soundness of his
plea allocution under Rule 11, which goes to the heart of
whether his guilty plea, including the waiver of appeal, is
enforceable. Thus we must determine whether the plea was
valid in order to determine if appeal is permitted.");
United States v. Rollings, 751 F.3d 1183, 1189-90
(10th Cir. 2014) (collecting cases in which courts analyzed
"the totality of the plea agreement-both the appellate
waiver and the plea provisions-in determining whether the
plea agreement was knowing and voluntary" and collapsing
the analysis of whether the appellate waiver, and thus
whether the circuit court could hear the appeal on its
merits, into an analysis of the merits); United States v.
Puentes-Hurtado, 794 F.3d 1278, 1284 (11th Cir. 2015)
(same); cf. In re Acosta, 480 F.3d 421, 422 (6th
Cir. 2007) ("[I]n cases where a defendant argues that
his plea was not knowing or voluntary . . . it would be
entirely circular for the government to argue that the
defendant has waived his right to an appeal or a collateral
attack when the substance of his claim challenges the very
validity of the waiver itself.").
Standard of Review
Ataya "let Rule 11 error[s] pass without objection in
the trial court . . . [he] has the burden to satisfy the
plain-error rule and . . . [we] may consult the whole record
when considering the effect of any error on substantial
rights." United States v. Vonn, 535 U.S. 55,
58-59 (2002). Plain-error review "involves four steps,
or prongs." Puckett v. United States, 556 U.S.
129, 135 (2009).
First, there must be an error or defect-some sort of
[d]eviation from a legal rule-that has not been intentionally
relinquished or abandoned, i.e., affirmatively
waived, by the appellant. Second, the legal error must be
clear or obvious, rather than subject to reasonable dispute.
Third, the error must have affected the appellant's
substantial rights, which in the ordinary case means he must
demonstrate that it affected the outcome of the district
court proceedings. Fourth and finally, if the above three
prongs are satisfied, the court of appeals has the
discretion to remedy the ...