United States v. Jonathan Wells ( 2022 )


Menu:
  •                  FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA,                 No. 19-10451
    Plaintiff-Appellee,
    D.C. No.
    v.                      5:18-cr-00567-
    LHK-1
    JONATHAN WELLS,
    Defendant-Appellant.          OPINION
    Appeal from the United States District Court
    for the Northern District of California
    Lucy H. Koh, District Judge, Presiding
    Argued and Submitted October 18, 2021
    San Francisco, California
    Filed March 22, 2022
    Before: J. Clifford Wallace, Ronald M. Gould, and
    Carlos T. Bea, Circuit Judges.
    Opinion by Judge Wallace;
    Dissent by Judge Bea
    2                  UNITED STATES V. WELLS
    SUMMARY *
    Criminal Law
    The panel dismissed in part an appeal from the district
    court’s judgment and order imposing sentence and
    conditions of supervised release, vacated the judgment in
    part, and remanded with instructions to the district court to
    clarify a special condition of supervised release to avoid a
    constitutional violation.
    The panel wrote that because the language of the waiver
    of the right to appeal in the plea agreement is unambiguous,
    and the defendant knowingly and voluntarily waived the
    right to appeal, the panel was obligated to enforce the waiver
    and would not exercise the jurisdiction to review the merits
    of the appeal unless any exceptions to the appeal waiver
    apply.
    Explaining that a waiver of the right to appeal does not
    bar a defendant from challenging an “illegal sentence,”
    which has a very limited and precise meaning in this context,
    the panel observed that the defendant does not have any
    statutory basis for challenging the terms of his sentence as
    illegal. The panel declined to extend the meaning of an
    “illegal sentence” to encompass sentences that potentially
    violate 
    18 U.S.C. § 3583
    (d), which governs imposition of
    conditions of supervised release, and 
    18 U.S.C. § 3553
    ,
    which sets forth factors to be considered in imposing a
    sentence.
    *
    This summary constitutes no part of the opinion of the court. It
    has been prepared by court staff for the convenience of the reader.
    UNITED STATES V. WELLS                      3
    In light of potential ambiguity in this court’s caselaw
    regarding when an appeal-waiver exception based on
    constitutional challenges applies or on the scope of the
    exception, the panel attempted to clarify. Guided by United
    States v. Bibler, 
    495 F.3d 621
     (9th Cir. 2007), and its
    progeny, the panel concluded that a waiver of the right to
    appeal a sentence does not apply if (1) the defendant raises a
    challenge that the sentence violates the Constitution; (2) the
    constitutional claim directly challenges the sentence itself;
    and (3) the constitutional challenge is not based on any
    underlying constitutional right that was expressly and
    specifically waived by the appeal waiver as part of a valid
    plea agreement. Following that precedent, the panel wrote
    that it must address the defendant’s constitutional claims that
    directly challenge the terms of his supervised release, where
    the defendant waived his general right to appeal “any aspect”
    of his sentence but did not expressly waive any specific
    constitutional right.        Except for the defendant’s
    constitutional challenges to the terms of his supervised
    release, the panel enforced the waiver and dismissed the
    appeal.
    The panel addressed on the merits the defendant’s three
    constitutional challenges: (1) Special Condition No. 3
    (computer ban) is unconstitutionally vague; (2) Special
    Condition No. 5 (internet ban) violates his First Amendment
    rights; and (3) both conditions are an unconstitutional
    delegation of authority because the conditions contain
    language that specify that the restrictions are subject to the
    approval of the probation officer.
    The panel held that Special Condition No. 3, whose
    definition of “computer” potentially could be understood to
    encompass household objects, is unconstitutionally vague.
    The panel wrote that because Special Condition No. 3
    4                 UNITED STATES V. WELLS
    violates a constitutional right, it is an “illegal” sentence and
    the waiver in the defendant’s plea agreement does not bar
    the appeal. The panel declined to apply the appeal waiver,
    and exercised its jurisdiction to consider the issue. Because
    the condition is a fortiori unconstitutionally vague on the
    merits, the panel vacated and remanded with instructions for
    the district court to delineate explicitly that the prohibition
    only covers computers and computer-related devices that
    can access sexually explicit conduct.
    Because the use of the internet was essential and integral
    to the offense of conviction, the receipt of child
    pornography, the panel rejected the defendant’s First
    Amendment challenges to Special Condition No. 5. Because
    Special Condition No. 5 does not violate the Constitution, it
    is not an “illegal” sentence, and in light of waiver of the right
    to appeal, the panel dismissed the defendant’s challenges to
    that condition.
    As to the defendant’s contention that Special Condition
    Nos. 3 and 5 unconstitutionally delegate authority to the
    probation officer, which the defendant did not argue in the
    district court, the panel wrote that it did not need to reach
    this issue because the special conditions are not manifestly
    unjust. It concluded that even considering the merits, the
    special conditions are not an unconstitutional delegation of
    authority.
    Dissenting, Judge Bea wrote that this case should be
    decided by the court sitting en banc because Bibler, 
    495 F.3d 621
     (holding that an exception to valid appeal waivers exists
    if the appellant claims a violation of a constitutional right),
    and United States v. Joyce, 
    357 F.3d 921
     (9th Cir. 2004)
    (dismissing an appeal based on a valid appeal wavier even
    though the defendant claimed his sentence violated his First
    UNITED STATES V. WELLS                     5
    Amendment rights), both control this case yet are entirely
    irreconcilable with one another.
    COUNSEL
    Leah Spero (argued), Spero Law Office, San Francisco,
    California; Mara K. Goldman and Dejan M. Gantar,
    Assistant Federal Public Defenders; Steven G. Kalar,
    Federal Public Defender; Federal Public Defenders Office,
    San Jose, California; for Defendant-Appellant.
    Merry Jean Chan (argued), Assistant United States Attorney,
    Chief, Appellate Section, Criminal Division; David L.
    Anderson, United States Attorney; United States Attorney’s
    Office, San Francisco, California; for Plaintiff-Appellee.
    OPINION
    WALLACE, Circuit Judge:
    Appellant Jonathan Wells appeals from the district
    court’s judgment and order imposing sentence and
    conditions of supervised release. We have jurisdiction under
    
    28 U.S.C. §§ 1291
    , 3742. We review de novo “[w]hether an
    appellant has waived his right to appeal” pursuant to the
    terms of a plea agreement, United States v. Joyce, 
    357 F.3d 921
    , 922 (9th Cir. 2004), and “[w]hether a supervised release
    condition illegally exceeds the permissible statutory penalty
    or violates the Constitution,” United States v. Watson,
    
    582 F.3d 974
    , 981 (9th Cir. 2009). Because Wells has
    waived his right to appeal, we refuse to exercise jurisdiction
    over his claims–except for his constitutional violation
    claims–and we dismiss his appeal. However, we vacate in
    6                UNITED STATES V. WELLS
    part and remand with instructions to the district court to
    clarify Special Condition No. 3 to avoid a constitutional
    violation.
    I.
    On April 28, 2016, police officers executed a search
    warrant for Wells’ residence for evidence relating to
    possession of child pornography. Wells was subsequently
    arrested and interviewed by detectives, and he admitted to
    using peer-to-peer (P2P) applications to seek child
    pornography by means of keyword search for the past
    several years.      Wells estimated he had downloaded
    approximately 20,000 files of child pornography, which
    were stored in various computers and external hard drives.
    Officers also found 69 compact discs or digital file discs that
    included files of child pornography.
    On November 27, 2018, Wells was charged with one
    count of receipt of child pornography in violation of
    
    18 U.S.C. § 2252
    (a)(2), (b)(1). In a written plea agreement
    pursuant to Federal Rule of Criminal Procedure
    11(c)(1)(A)–(B), Wells pled guilty to the receipt of child
    pornography.         He was sentenced to 76 months’
    imprisonment followed by five years of supervised release.
    In addition to the standard conditions of supervised release,
    the district court imposed 16 special conditions of supervised
    release. In this appeal, Wells challenges Special Condition
    Nos. 3 and 5. Special Condition No. 3 bans the possession
    and use of any computer without prior approval of the
    probation officer and Special Condition No. 5 bans the
    access to any internet or on-line computer service without
    approval of the probation officer.
    UNITED STATES V. WELLS                     7
    II.
    A.
    We first turn to whether Wells knowingly and
    voluntarily waived the right to appeal the conditions of his
    supervised release. “A defendant’s waiver of his appellate
    rights is enforceable if the language of the waiver
    encompasses his right to appeal on the grounds raised, and if
    the waiver was knowingly and voluntarily made.” Joyce,
    
    357 F.3d at
    922–23 (citation omitted). “Plea agreements are
    contracts between a defendant and the government,” which
    can contain a waiver of a defendant’s right to appeal. 
    Id. at 923
     (citation omitted). Since “[p]lea agreements are
    contractual by nature and are measured by contract law
    standards,” we “enforce the literal terms of the plea
    agreement” but generally “construe ambiguities in favor of
    the defendant.” United States v. Franco-Lopez, 
    312 F.3d 984
    , 989 (9th Cir. 2002) (citations omitted). Thus, when the
    language of a plea agreement is clear and “[a]bsent some
    miscarriage of justice,” we “will not exercise [the]
    jurisdiction to review the merits of [an] appeal if we
    conclude that [the defendant] knowingly and voluntarily
    waived the right to bring the appeal.” United States v.
    Harris, 
    628 F.3d 1203
    , 1205 (9th Cir. 2011) (internal
    quotation marks and citations omitted).
    In this case, the plea agreement language is clear. The
    plea agreement states: “I agree to give up my right to appeal
    the judgment and all orders of the Court. I also agree to give
    up my right to appeal any aspect of my sentence.” Dist. Ct.
    Dkt. No. 10 ¶ 4. We have repeatedly held that “any aspect”
    of a sentence includes “not only any term of imprisonment,
    but also fines and conditions of supervised release.” Joyce,
    
    357 F.3d at 923
    ; see also Watson, 
    582 F.3d at 986
     (“We
    determined that the reference to ‘any aspect of the sentence’
    8                UNITED STATES V. WELLS
    unambiguously encompassed supervised release terms.”).
    In addition, the plea agreement expressly acknowledges that
    special conditions of supervised release will be part of the
    sentence imposed. The plea agreement states that “based on
    the nature of the offense, the Court should impose” two
    specific special conditions of supervised release, which
    require Wells to submit to searches and refrain from
    accessing or using any file-sharing P2P network or software.
    Dist. Ct. Dkt. No. 10 ¶ 8.
    Wells knowingly and voluntarily agreed to the plea
    agreement and the waiver to appeal his sentence. The plea
    agreement was signed by both Wells and his counsel, which
    acknowledges that his “decision to plead guilty is made
    voluntarily, and no one coerced or threatened [him] to enter
    into this Agreement.” Dist. Ct. Dkt. No. 10 ¶ 19. His
    counsel also confirmed that he “fully explained to [Wells]
    all the rights that a criminal defendant has and all the terms
    of this Agreement,” and that Wells “understands all the
    terms of this Agreement and all the rights [he] is giving up
    by pleading guilty . . . [and his] decision to plead guilty is
    knowing and voluntary.” 
    Id.
     Moreover, at the sentencing
    hearing, the district judge provided Wells with “final
    advisement” and stated: “Mr. Wells, there was a plea
    agreement in your case, and in paragraph 4 of your plea
    agreement, you gave up your right to appeal your conviction,
    the judgment, orders of the court, any aspect of your
    sentence, including any forfeiture or restitution order.” Dist.
    Ct. Dkt. No. 29 at 58:22–59:2. Because the language of the
    waiver is unambiguous and Wells knowingly and voluntarily
    waived the right to bring the appeal, we are obligated to
    enforce the waiver and will not exercise the jurisdiction to
    review the merits of the appeal unless any exceptions apply.
    See Harris, 
    628 F.3d at 1205
    .
    UNITED STATES V. WELLS                     9
    B.
    We next turn to whether any exceptions to the waiver of
    the right to appeal apply. Even if a defendant knowingly and
    voluntarily waives the right to appeal his sentence, we have
    held that “[a] waiver of the right to appeal does not bar a
    defendant from challenging an illegal sentence.” Watson,
    
    582 F.3d at 977
     (emphasis added). In this context, an “illegal
    sentence” has a very limited and precise meaning. We have
    defined “illegal sentence” to mean “one not authorized by
    the judgment of conviction or in excess of the permissible
    statutory penalty for the crime.” United States v. Lo,
    
    839 F.3d 777
    , 785 (9th Cir. 2016), quoting United States v.
    Vences, 
    169 F.3d 611
    , 613 (9th Cir. 1999). We have also
    held that a sentence is “illegal” if it “violates the
    Constitution.” United States v. Torres, 
    828 F.3d 1113
    , 1125
    (9th Cir. 2016), quoting United States v. Bibler, 
    495 F.3d 621
    , 624 (9th Cir. 2007). Thus, an appeal waiver does not
    apply to a sentence “if it exceeds the permissible statutory
    penalty for the crime or violates the Constitution.” Bibler,
    
    495 F.3d at 624
    .
    In this case, Wells does not have any statutory basis for
    challenging the terms of his sentence as illegal. Wells does
    not argue that the sentence exceeds the permissible statutory
    penalty for the crime. Instead, Wells argues that Special
    Condition Nos. 3 and 5 are “illegal” because the conditions
    violate 
    18 U.S.C. § 3583
    (d), as they are not “reasonably
    related to the factors set forth in section 3553(a)(1),
    (a)(2)(B), (a)(2)(C), and (a)(2)(D)” and involve “greater
    deprivation of liberty than is reasonably necessary for the
    purposes set forth in section 3553(a)(2)(B).” Dkt. No. 7 at
    14–19. But our definition of “illegal sentence” in the context
    of an appeal waiver does not extend so far. Indeed, we have
    held that a “district court’s failure to comply with § 3553
    10                   UNITED STATES V. WELLS
    does not make [a defendant’s] sentence ‘illegal.’” Vences,
    
    169 F.3d at 613
    . We again decline to extend the meaning of
    an “illegal sentence” to encompass sentences that potentially
    violate section 3583(d), which governs the district court’s
    imposition of conditions of supervised release, and section
    3553, which sets forth the factors to be considered in
    imposing a sentence. Otherwise, a valid appeal waiver as
    part of a bargained-for plea agreement would be meaningless
    and it would allow defendants to circumvent any plea
    agreement and appeal waiver. Accordingly, Wells fails to
    challenge the terms of his sentence as “illegal” under any
    valid statutory grounds. We decline to overreach and
    exercise our jurisdiction to entertain an appeal when the plea
    agreement effectively waived the right to appeal his
    sentence.
    Wells also raises several constitutional challenges to his
    sentence. Since Bibler, we have held that an exception to an
    appeal waiver applies to sentences that are unlawful or
    violate the Constitution. See Bibler, 
    495 F.3d at 624
    ;
    Watson, 
    582 F.3d at 987
    ; Torres, 828 F.3d at 1125; United
    States v. Pollard, 
    850 F.3d 1038
    , 1041 (9th Cir. 2017). But
    our caselaw has not been entirely clear on when the
    exception based on constitutional challenges applies or on
    the scope of the exception. In light of the potential
    ambiguity in our caselaw, we attempt to clarify the Bibler
    rule by addressing our various circuit precedent.
    First, in Joyce, we dismissed an appeal for lack of
    jurisdiction when the defendant challenged his sentence on
    First Amendment grounds. 1 See Joyce, 
    357 F.3d at
    925
    1
    Although Joyce held that we lack jurisdiction to consider the merits
    of a challenge, see Joyce, 
    357 F.3d at 925
    , the en banc court in United
    States v. Jacobo Castillo subsequently made clear that a plea
    UNITED STATES V. WELLS                           11
    (holding that because the defendant “validly waived his right
    to appeal any aspect of his sentence, including the district
    court’s imposition of special conditions of supervised
    release, we lack jurisdiction to consider the merits of his
    challenge to the computer and Internet use restrictions” on
    First Amendment grounds). Our holding in Joyce would
    seem to conflict with our language in Bibler stating that an
    “appeal waiver will not apply if . . . the sentence violates the
    law,” which includes a sentence that “exceeds the
    permissible statutory penalty for the crime or violates the
    Constitution.” Bibler, 
    495 F.3d at 624
    . But Joyce was
    decided three years prior to Bibler and did not address the
    issue of whether an appeal waiver applies to challenges that
    a sentence is unconstitutional. The issue was not raised by
    parties and the defendant in Joyce “agree[d] that the appeal
    waiver he signed prevents him from challenging the 27-
    month term of imprisonment.” Joyce, 
    357 F.3d at 922
    . 2
    agreement’s appeal waiver does not divest our court of jurisdiction to
    hear an appeal, see 
    496 F.3d 947
    , 957 (9th Cir. 2007). Rather, we
    generally apply the appeal waiver’s preclusive effect and choose not to
    exercise our jurisdiction. See Castillo, 
    496 F.3d at 957
     (“The preclusive
    effect we give to the plea agreement may depend on the nature of the
    plea and the circumstances in which it is brought to our attention.”).
    Thus, we discuss Joyce in the context of “address[ing] the preclusive
    effect to be given the plea agreement, not the jurisdiction of the court.”
    
    Id. at 956
    .
    2
    The dissent believes that Joyce necessarily reached the issue of
    whether the appeal waiver applies to constitutional challenges to the
    sentence. But that is not supported by the record. Again, the issue was
    never presented to the Joyce panel, and the defendant in Joyce explicitly
    “agrees that the appeal waiver he signed prevents him from challenging
    the 27-month term of imprisonment” on First Amendment grounds and
    only “argues that the special conditions of release are not part of his
    ‘sentence.’” Joyce, 
    357 F.3d at 922
    . Therefore, the court never
    explicitly reached the issue of whether the appeal waiver applied to the
    12                  UNITED STATES V. WELLS
    Rather, the only issue addressed was the argument that “the
    special conditions of release are not part of his ‘sentence,’
    and thus that the language of his appellate waiver does not
    bar this challenge.” 
    Id.
     Joyce is therefore silent on whether
    a constitutional challenge to a sentence survives an appeal
    waiver. Indeed, when deciding whether an intervening
    higher authority is clearly irreconcilable with our precedent,
    we look to “the reasoning and analysis in support of a
    holding, rather than the holding alone.” United States v.
    Lindsey, 
    634 F.3d 541
    , 550 (9th Cir. 2011) (emphasis in
    original). In that context, we have reiterated that the only
    time a three-judge panel may depart from circuit precedent
    is when it is “clearly irreconcilable” with intervening
    authority. Lair v. Bullock, 
    697 F.3d 1200
    , 1207 (9th Cir.
    2012). Considering that Joyce is not even from an
    intervening higher authority, it is difficult to say that a
    previous decision such as Joyce that is completely silent on
    a legal issue is “clearly irreconcilable” with other published
    opinions confronting the issue.
    Second, the scope of the Bibler exception requires some
    clarification. Although “a waiver of appellate rights
    generally does not preclude review of a sentence that
    violates the Constitution,” we have held that if a defendant
    expressly waives a certain constitutional right in the plea
    agreement, the waiver will still apply to any challenges
    based on that specific constitutional right. Pollard, 850 F.3d
    at 1043–44 (declining to address the defendant’s Eighth
    Amendment excessive fine claim because the defendant
    “specifically waived ‘any claim or defense under the Eighth
    Amendment to the United States Constitution, including, but
    not limited to, any claim or defense of excessive fine in any
    defendant’s constitutional challenges. Nor was it necessary to do so for
    the disposition of that case.
    UNITED STATES V. WELLS                    13
    proceedings concerning the property’”). After all, plea
    agreements are bargained-for contracts “measured by
    contract law standards” and we “enforce the literal terms of
    the plea agreement.” Franco-Lopez, 
    312 F.3d at 989
    (citations omitted).
    The Bibler exception, however, clearly carved out
    challenges that the sentence is illegal when a plea agreement
    waives “all right to appeal the sentence imposed by the
    Court.” Bibler, 
    495 F.3d at 624
    . This was based on the
    rationale that an appeal waiver will not apply if the sentence
    subsequently imposed by the court is inherently unlawful. If
    exceptions to an appeal waiver include “an appeal where the
    sentence imposed is not in accordance with the negotiated
    agreement” or an appeal where the sentence is “not
    authorized by the judgment of conviction or in excess of the
    permissible statutory penalty for the crime,” Lo, 839 F.3d at
    785 (citations omitted), an appeal arguing that a sentence
    violates the Constitution certainly should also fall under the
    general exception that an appeal waiver does not apply to an
    unlawful sentence, as the Constitution is the “supreme law
    of the land,” Cooper v. Aaron, 
    358 U.S. 1
    , 18 (1958).
    Consequently, we have stated that the “analogy between plea
    agreements and private contracts is imperfect . . . because
    the Constitution imposes a floor below which a defendant’s
    plea, conviction, and sentencing may not fall.” Torres, 828
    F.3d at 1124–25.
    Balancing the interest of preventing the district court
    from imposing an unlawful sentence with the interest of
    enforcing a plea agreement’s explicit language, we interpret
    our precedent to limit the Bibler exception to constitutional
    challenges involving appeal waivers that waive only a
    defendant’s “general right to appeal” and not to any
    constitutional challenges based on a constitutional right
    14               UNITED STATES V. WELLS
    specifically waived by the plea agreement. See, e.g.,
    Pollard, 850 F.3d at 1043; cf. Torres, 828 F.3d at 1124
    (defendant generally waiving “the right to appeal any
    sentence” and “the right to appeal any other aspect of the
    conviction or sentence”). Indeed, Bibler stated that “[i]f
    defendants intend to preserve a larger subset of their
    appellate rights, this must be bargained for in the plea
    agreement.” Bibler, 
    495 F.3d at 624
    . Similarly, if the
    government wishes to exclude a subset of a defendant’s right
    to challenge an unconstitutional sentence, it must also be
    specifically bargained for in the plea agreement.
    Finally, we caution that constitutional challenges to a
    sentence surviving an appeal waiver under the Bibler
    exception are limited to challenges that the terms of the
    sentence itself are unconstitutional. The exception does not
    allow any constitutional challenges per se, such as the Sixth
    Amendment rights to a speedy and public trial or right to
    confront witnesses, which are not challenges that the
    sentence is unconstitutional. This is consistent with cases
    where we have applied an appeal waiver to constitutional
    challenges based under the Sixth Amendment right to a
    public trial. Cf. United States v. Shehadeh, 
    962 F.3d 1096
    ,
    1102 (9th Cir. 2020) (affirming the district court’s denial of
    the defendant’s motion to withdraw plea agreement because
    the defendant’s “plea was knowing and voluntary, [and] the
    waiver in his plea agreement bars his remaining claims that
    the district court violated his Sixth Amendment right to a
    public trial”).
    Guided by Bibler and its progeny, we conclude that a
    waiver of the right to appeal a sentence does not apply if
    (1) the defendant raises a challenge that the sentence violates
    the Constitution; (2) the constitutional claim directly
    challenges the sentence itself; and (3) the constitutional
    UNITED STATES V. WELLS                            15
    challenge is not based on any underlying constitutional right
    that was expressly and specifically waived by the appeal
    waiver as part of a valid plea agreement. 3 Here, Wells brings
    several constitutional claims that directly challenge the
    terms of his supervised release. Wells waived his general
    right to appeal “any aspect” of his sentence but did not
    expressly waive any specific constitutional right, such as any
    First Amendment challenges. Following our precedent, we
    must address the constitutional challenges on the merits.
    Except for Wells’ constitutional challenges to the terms
    of his supervised release, which are addressed below, we
    enforce the appeal waiver and dismiss this appeal.
    III.
    The only issues that survive the appeal waiver are Wells’
    challenges that the special conditions violate a constitutional
    right.    Specifically, Wells raises three constitutional
    challenges: (1) Special Condition No. 3 (computer ban) is
    unconstitutionally vague; (2) Special Condition No. 5
    (internet ban) violates his First Amendment rights; and
    3
    The dissent critiques the Bibler rule as problematic and suggests
    that it should not be followed. But it is not our role as a panel to decide
    whether Bibler and the line of cases that have followed its rule are
    incorrect. See Bibler, 
    495 F.3d at 624
    ; Watson, 
    582 F.3d at 987
    ; Torres,
    828 F.3d at 1125; Pollard, 850 F.3d at 1041. Certainly, if this case is
    heard en banc, the en banc court can decide if Bibler and its progeny
    should be overturned and adopt a new rule. However, we as a panel are
    bound by the prior published decisions of our court. See Oregon Nat.
    Desert Ass’n v. U.S. Forest Serv., 
    550 F.3d 778
    , 782 (9th Cir. 2008)
    (“Typically, we are bound by earlier published decisions of our court”
    except for when “circuit precedent may be effectively overruled by
    subsequent Supreme Court decisions.”). Unless Bibler is overturned by
    the en banc court or by the Supreme Court, we must faithfully apply its
    rule to this case.
    16                UNITED STATES V. WELLS
    (3) both conditions are an unconstitutional delegation of
    authority because the conditions contain language that
    specify that the restrictions are subject to the approval of the
    probation officer.
    For the following reasons, we hold that Special
    Condition No. 3 is unconstitutionally vague, and we vacate
    and remand with instructions for the district court to clarify
    the condition. Special Condition No. 5 does not violate a
    constitutional right and we dismiss Wells’ challenges to that
    condition.     For both conditions, the district court’s
    imposition of the restrictions subject to the approval of the
    probation officer is not an unconstitutional delegation of
    authority.
    A.
    Special Condition No. 3 states: “You must not possess or
    use a computer without the prior approval of the probation
    officer. ‘Computer’ includes any electronic device capable
    of accessing the internet or processing or storing data as
    described at 
    18 U.S.C. § 1030
    (e)(1) (including cell phones),
    and all peripheral devices.” As part of the statute governing
    computer fraud crimes,          section 1030(e)(1) defines
    “computer” as “an electronic, magnetic, optical,
    electrochemical, or other high speed data processing device
    performing logical, arithmetic, or storage functions, and
    includes any data storage facility or communications facility
    directly related to or operating in conjunction with such
    device, but such term does not include an automated
    typewriter or typesetter, a portable hand held calculator, or
    other similar device.” 
    18 U.S.C. § 1030
    (e)(1).
    In a footnote, Wells argues that to the extent Special
    Condition No. 3 (computer ban) includes a “reasonableness”
    limitation, it is “unconstitutionally vague.” Dkt. No. 7 at 19
    UNITED STATES V. WELLS                     17
    n.13. Specifically, Wells argues that the condition is
    unconstitutionally vague because he “has no way of knowing
    which items a probation officer will deem reasonable.” 
    Id.
    Unlike Wells’ other arguments that the condition is
    overbroad or overly harsh, which would be barred from the
    appeal waiver, a challenge that a condition of supervised
    release is unconstitutionally vague is rooted in a defendant’s
    fundamental right to due process. “A condition of
    supervised release violates due process ‘if it either forbids or
    requires the doing of an act in terms so vague that men of
    common intelligence must necessarily guess at its meaning
    and differ as to its application.’” United States v. Evans,
    
    883 F.3d 1154
    , 1160 (9th Cir. 2018), quoting United States
    v. Hugs, 
    384 F.3d 762
    , 768 (9th Cir. 2004).
    We conclude that Special Condition No. 3 requires
    clarification. The definition of “computer” under the
    condition potentially could be understood to encompass
    common household objects. An “electronic, magnetic,
    optical, electrochemical, or other high speed data processing
    device performing logical, arithmetic, or storage functions”
    can include devices such as smart kitchen appliances that
    contain microprocessors, even though such appliances are
    not capable of receiving, storing, or otherwise processing
    materials of child pornography. To be clear, we do not make
    any determination on whether the special condition is
    overbroad, as it is an issue that is barred by the waiver.
    Certainly, the district court could have simply imposed a
    condition that bars the use of any device that uses electricity,
    which perhaps would be problematic for other reasons but is
    not “unconstitutionally vague.” But the definition for
    “computer” without any clarification here can lead to a
    situation where “men of common intelligence must
    necessarily guess at its meaning and differ as to its
    application.” Evans, 883 F.3d at 1160 (citation omitted).
    18                   UNITED STATES V. WELLS
    For instance, one would have to guess whether a digital
    watch fits under the definition of computer provided by
    section 1030(e)(1). A digital watch would seem to be an
    electronic device that performs logical, arithmetic, or storage
    functions, as it could store alarm times and other data.
    Furthermore, adding to the confusion is the statute’s
    exclusion of “automated typewriter or typesetter, a portable
    hand held calculator, or other similar device” from the
    definition of “computer.” 
    18 U.S.C. § 1030
    (e)(1). A digital
    watch could also be said to be similar to a calculator or
    typewriter as it performs basic time calculations and displays
    the time. Unless it is exactly a typewriter or calculator, a
    defendant would not be able to tell for certain whether an
    electronic device with a microprocessor is considered a
    “computer” for the purposes of the special condition.
    Moreover, we have previously held, albeit in an
    unpublished disposition, that similar special condition
    language      referencing       section      1030(e)(1)     is
    unconstitutionally vague.   4
    Although Peterson has no
    precedential value, its reasoning is helpful. In Peterson, we
    considered whether a special condition of supervised release
    that directs the defendant to not “use or possess any
    computer [or] computer-related devices . . . which can
    communicate data via modem, dedicated connections or
    cellular networks” is unconstitutionally vague. United
    States v. Peterson, 776 F. App’x. 533, 534 (9th Cir. 2019).
    We determined that the “limiting language referencing
    4
    A memorandum disposition is not precedential and may not be
    cited to the court. See, e.g., United States v. Peterson, 776 F. App’x. 533
    (9th Cir. 2019). The quotation from the above memorandum disposition
    has been helpful to the panel in considering the issue before us.
    However, we have not given it any more consideration than a well-
    reasoned law review article.
    UNITED STATES V. WELLS                    19
    
    18 U.S.C. § 1030
    (e)(1) does not provide sufficient
    guidance” and is impermissibly vague. 
    Id.
     There, we
    expressed the concern that “references were made to
    numerous items which would seemingly fall within the
    ambit of the condition, but which a reasonable person might
    be unaware – e.g. refrigerators with Internet connectivity,
    Fitbit™ watches, etc. Also, for example, all automobiles
    manufactured after 2008 are required to be equipped with
    computers that can send digital messages concerning the
    vehicle’s operations through a ‘controller area network.’” 
    Id.
    at 534 n.3 (citation omitted). Thus, we remanded the special
    condition “for the district court to explicitly delineate that
    the prohibition only covers computers and computer-related
    devices that can access” materials with depictions of
    sexually explicit conduct involving children, as defined by
    
    18 U.S.C. § 2256
    (2) or deemed inappropriate by the
    probation officer. 
    Id. at 534
    .
    To be sure, a limiting instruction that excludes only
    computer devices that are capable of accessing materials of
    sexually explicit conduct would also limit the scope of the
    special condition. On the other hand, one can also argue that
    there are presumably electronic devices that can
    communicate data but are not sophisticated enough to
    transmit any sexually explicit material. Such devices would
    have been banned from the special condition in its current
    form but would not be included with a limiting instruction.
    Again, we do not base our analysis and determination on
    whether the special condition is overly broad or not. We
    simply hold that a limiting instruction similar to the one we
    required in Peterson would help clarify the meaning of what
    devices count as a “computer” for purposes of the special
    condition. Such a limiting instruction would clearly indicate
    to Wells whether a device is barred or not. For instance, a
    digital watch that is only capable of displaying time would
    20               UNITED STATES V. WELLS
    not be barred but a smartwatch that can send and receive
    images, browse the internet, or otherwise access sexually
    explicit material would clearly be barred. It would be much
    more reasonable to require “men of common intelligence” to
    know whether a device is capable of transmitting or storing
    a digital file that includes materials depicting sexually
    explicit conduct than to decipher the meaning of “computer”
    under 
    18 U.S.C. § 1030
    (e)(1). Evans, 883 F.3d at 1160
    (citation omitted).
    Because Special Condition No. 3 violates a
    constitutional right, it is an “illegal” sentence and “the
    waiver in his plea agreement does not bar this appeal.”
    Torres, 828 F.3d at 1125. We decline to apply the appeal
    waiver and exercise our jurisdiction to consider this issue. A
    fortiori, the condition is unconstitutionally vague on the
    merits as well. Therefore, we vacate and remand Special
    Condition No. 3 for the district court to delineate explicitly
    that the prohibition only covers computers and computer-
    related devices that can access sexually explicit conduct.
    B.
    Special Condition No. 5 states: “You must not access the
    Internet or any ‘on-line computer service’ at any location
    (including employment) without the prior approval of the
    probation officer. ‘On-line services’ include any Internet
    service provider, or any other public or private computer
    network. As directed by the probation officer, you must warn
    your employer of restrictions to your computer use.” Wells
    argues that this special condition violates the Constitution
    because it unnecessarily restricts his First Amendment
    rights.
    “While a district court’s discretion to set conditions of
    supervised release is broad even when those conditions
    UNITED STATES V. WELLS                           21
    affect fundamental rights, restrictions infringing upon
    fundamental rights are reviewed carefully.” United States v.
    Soltero, 
    510 F.3d 858
    , 866 (9th Cir. 2007) (internal
    quotation marks and citations omitted). To determine
    whether conditions of supervised release impermissibly
    infringe upon a defendant’s rights, “a reviewing court must
    inquire whether the limitation[ ] [is] primarily designed to
    affect the rehabilitation of the probationer or insure the
    protection of the public.” United States v. Bee, 
    162 F.3d 1232
    , 1235 (9th Cir. 1998) (internal quotation marks and
    citation omitted). Thus, even if a condition infringes a
    defendant’s fundamental right, “[a] restriction on a
    defendant’s [constitutional right] is nonetheless valid if it”:
    (1) is reasonably related to the goals of
    deterrence, protection of the public, and/or
    defendant rehabilitation; (2) involves no
    greater deprivation of liberty than is
    reasonably necessary to achieve these goals;
    and (3) is consistent with any pertinent policy
    statements issued by the Sentencing
    Commission pursuant to 
    28 U.S.C. § 994
    (a).
    Soltero, 
    510 F.3d at 866
     (internal quotation marks and
    citations omitted).
    For the following reasons, we reject Wells’ First
    Amendment challenges to Special Condition No. 5. The
    special condition no doubt infringes on Wells’ right to free
    speech by restricting his internet access. 5 But the district
    5
    To be clear, Wells’ reliance on Packingham v. North Carolina, 
    137 S. Ct. 1730
    , 1735 (2017), is misguided. Packingham involved “severe
    restrictions on persons who already have served their sentence and are
    no longer subject to the supervision of the criminal justice system.” 137
    22                   UNITED STATES V. WELLS
    court imposed the condition for purposes of rehabilitation
    and to “insure the protection of the public.” Bee, 
    162 F.3d at 1235
    . Wells was convicted for possession of child
    pornography and the sheer volume of the material he
    possessed is especially troubling (approximately 20,000
    files).   Even though internet access clearly enables
    individuals to engage in a wide array of protected First
    Amendment activity, it is also clearly what enables Wells to
    gain access to child pornography. Moreover, Wells not only
    used the internet to use P2P applications to obtain child
    pornography, but also used search terms related to child
    pornography to browse the web and various social media
    accounts. At the sentencing hearing, the district court
    considered Wells’ objections and imposed the special
    condition because “there is a strong link between child
    pornography and the internet, and the need to protect the
    public, particularly children, from sex offenders; but also to
    protect the victims of these child pornography offenses from
    being revictimized every time they keep getting these
    hundreds and hundreds of victim witness letters saying yet
    someone else has viewed your image of you being raped
    when you were two years old.”
    Indeed, we have repeatedly held that “a defendant’s free
    speech rights may be infringed to ‘effectively address [his]
    sexual deviance problem.’” United States v. Gnirke,
    
    775 F.3d 1155
    , 1160 (9th Cir. 2015), quoting United States
    v. Rearden, 
    349 F.3d 608
    , 619 (9th Cir. 2003). In Rearden,
    a defendant challenged a special condition that prohibited
    him from “possession or use of a computer with access to
    any online service at any location without prior approval of
    S. Ct. at 1737. On the other hand, Wells is an individual currently subject
    to the supervision of the criminal justice system and specific supervised
    release conditions tailored to his conviction and circumstances.
    UNITED STATES V. WELLS                      23
    the probation officer.” Rearden, 
    349 F.3d at 620
    . Although
    we recognized “the importance of the Internet for
    information and communication,” we held that “limiting [a
    defendant’s] Internet access without prior approval of the
    Probation Office is reasonably related to the offense that
    involved e-mail transmissions of quite graphic child
    pornography, and to the important goal of deterring him
    during the period of supervision from reverting to similar
    conduct, and thus, to rehabilitation and protecting the
    public.” 
    Id.
     at 620–21. To be sure, we have also held that
    “because access to the Internet has become so vital, courts
    have upheld conditions prohibiting all use of the Internet
    only in limited circumstances.” United States v. LaCoste,
    
    821 F.3d 1187
    , 1191 (9th Cir. 2016). But one of the limited
    circumstances that allow for a broad internet restriction is
    “when use of the Internet was ‘essential’ or ‘integral’ to the
    offense of conviction.” Id.; see also United States v.
    Antelope, 
    395 F.3d 1128
    , 1142 (9th Cir. 2005) (affirming
    conditions of supervised release prohibiting access to any
    on-line computer service because “the Internet was
    nevertheless essential to the commission of [defendant’s]
    crime: He first contacted the federal agents through joining
    a child pornography-oriented online group”). Here, the use
    of the internet was essential and integral to the offense: the
    receipt of child pornography.
    Because Special Condition No. 5 does not violate the
    Constitution, it is not an “illegal” sentence. In light of Wells’
    waiver of the right to appeal, we dismiss this claim. See
    Watson, 
    582 F.3d at 988
     (dismissing appeal on waiver
    grounds because the “condition of supervised release . . . did
    not make [the defendant’s] sentence illegal).
    24                UNITED STATES V. WELLS
    C.
    Finally, both Special Condition Nos. 3 and 5 provide that
    the restrictions apply only when it is “without the prior
    approval of the probation officer.” Wells challenges that the
    district court’s decision to subject restrictions to the approval
    of the probation officer is an unconstitutional delegation of
    authority. For the following reasons, we reject this
    challenge.
    Since “[u]nder our constitutional system[,] the right to
    . . . impose the punishment provided by law is judicial,” “a
    probation officer may not decide the nature or extent of the
    punishment imposed upon a probationer.” United States v.
    Stephens, 
    424 F.3d 876
    , 881 (9th Cir. 2005) (citations
    omitted). But once “the court makes the determination of
    whether a defendant must abide by a condition, and how . . .
    a defendant will be subjected to the condition, it is
    permissible to delegate to the probation officer the details of
    where and when the condition will be satisfied.” 
    Id. at 880
    .
    The record shows that Wells did not challenge the
    special conditions on this basis before the district court. In
    his written objections to the proposed special conditions of
    supervised release, Wells only argued that the blanket
    prohibition on computers and access to the internet was
    improper. Nor did he raise this argument at any time during
    the sentencing hearing. In general, we do not “review an
    issue not raised below unless necessary to prevent manifest
    injustice.” Int’l Union of Bricklayers & Allied Craftsman
    Loc. Union No. 20, AFL-CIO v. Martin Jaska, Inc., 
    752 F.2d 1401
    , 1404 (9th Cir. 1985). Here, we need not do so because
    the special conditions are not manifestly unjust.
    But even considering the merits of the challenge, the
    special conditions are not an unconstitutional delegation of
    UNITED STATES V. WELLS                     25
    authority to the probation office. When a defendant “did not
    raise the issue before the district court, we review for plain
    error.” United States v. Yijun Zhou, 
    838 F.3d 1007
    , 1010
    (9th Cir. 2016) (“The ordinary rule in criminal cases—
    established by Federal Rule of Criminal Procedure 52(b) and
    by Supreme Court precedent—is that ‘plain error’ review
    applies to arguments raised for the first time on appeal. See
    Fed. R. Crim. P. 52(b).”). The district court imposed
    conditions that Wells may not use any computer or access
    the internet (whether it is appropriate to have computer and
    internet access) and delegated to the probation office the
    implementation of this condition (when it may be
    appropriate to allow an exception). Moreover, the added
    limitation of requiring prior approval of the probation officer
    to Special Conditions Nos. 3 and 5 ensures that the
    conditions are no more restrictive than necessary. The
    requirement for the approval of the probation officer gives
    the flexibility to allow for some exceptions to the total ban
    on computers and internet access if the probation office
    deems the use safe and without risk of obtaining child
    pornography.
    Our decision in Blinkinsop is instructive. See United
    States v. Blinkinsop, 
    606 F.3d 1110
     (9th Cir. 2010). There,
    we vacated a condition requiring the defendant “not go to or
    loiter near school yards, parks, play grounds, arcades, or
    other paces [sic] primarily used by children under the age
    of 18” to allow the district court to consider amending the
    provision and allow an exception for school events involving
    the defendant’s own children with the “written permission of
    his probation officer prior to each such attendance.” 
    Id.
     at
    1119–22. This is because the “probation officer, who has
    regular contact with a sex offender on supervised release, . . .
    is in the best position to determine the appropriate contact
    with minors for a released defendant convicted of a child-
    26               UNITED STATES V. WELLS
    pornography crime.” 
    Id. at 1121
    . Similarly, the probation
    officer here is in the best position to determine when a use
    of computer devices or internet service is appropriate for
    Wells. Thus, we have repeatedly followed Blinkinsop and
    summarily rejected similar arguments that a district court
    abuses its discretion by delegating to the probation office the
    implementation of a condition of supervised release. See,
    e.g., United States v. Stewart, 671 F. App’x 614 (9th Cir.
    2016).
    DISMISSED in part; VACATED and REMANDED in
    part.
    BEA, Circuit Judge, dissenting:
    A case controlled by contradictory precedents must be
    decided by the court sitting en banc. Atonio Wards Cove
    Packing Co., 
    810 F.2d 1477
    , 1478–79 (9th Cir. 1987).
    United States v. Bibler, 
    495 F.3d 621
     (9th Cir. 2007) and
    United States v. Joyce, 
    357 F.3d 921
     (9th Cir. 2004), both
    control this case yet are entirely irreconcilable with one
    another. Therefore, this case should be decided by the court
    sitting en banc, not by a three-judge panel. For this reason, I
    respectfully dissent from the majority opinion.
    I. Joyce and Bibler are irreconcilable.
    In Joyce, our court dismissed an appeal based on a valid
    appeal waiver even though the defendant claimed his
    sentence violated his First Amendment rights. Joyce, 
    357 F.3d at 925
    . In the words of Judge Gould’s dissent in Joyce,
    “what a court does is a more important statement of its
    holding for stare decisis purposes than what it merely says.”
    
    Id. at 927
     (Gould, J., dissenting) (emphasis in original). By
    UNITED STATES V. WELLS                     27
    dismissing the appeal on the basis of a valid appeal waiver,
    even where the appellant claimed a violation of his
    constitutional rights, the Joyce panel necessarily held that no
    “exception” to the appeal waiver applied because of the
    claim that the sentence violated the appellant’s constitutional
    rights. Thus, Joyce’s holding stands for the proposition that
    a claimed violation of a constitutional right cannot except an
    appellant from being bound by his valid appeal waiver.
    When confronted with these facts, the court must dismiss the
    appeal.
    Bibler, which was decided three years after Joyce but
    failed to cite it, reached the merits of the appeal, despite the
    appellant’s valid appeal waiver, because it held that an
    exception to valid appeal waivers exists if the appellant
    claims a violation of a constitutional right. Bibler, 
    495 F.3d at 624
    .
    “Where a panel confronts an issue germane to the
    eventual resolution of the case and resolves it after reasoned
    consideration in a published opinion, that ruling becomes the
    law of the circuit . . . .” United States v. Johnson, 
    256 F.3d 895
    , 914 (9th Cir. 2001) (en banc). The panel is therefore
    bound simultaneously by the contradictory precedents of
    Joyce and Bibler.
    The majority attempts to escape this result by
    distinguishing Joyce from Bibler, but its efforts are
    unavailing. The only difference between Joyce and Bibler is
    that Bibler’s counsel styled the constitutional claim as an
    “exception” to the valid appeal waiver instead of challenging
    the validity of the appeal waiver directly. But two holdings
    are irreconcilable based on their facts and the law, not
    whether attorneys in the cases styled their arguments with
    different words.
    28                   UNITED STATES V. WELLS
    Essentially, the majority claims that Joyce’s holding is
    not binding precedent because the parties in that case did not
    argue that the First Amendment challenge created an
    exception to the appeal waiver, and therefore Joyce did not
    reach the issue. That conclusion is simply incorrect. Joyce
    necessarily reached the issue of whether the appeal waiver
    was effective when it dismissed the appeal on waiver
    grounds. For this reason, Joyce cannot be persuasively
    distinguished from Bibler, and this irreconcilable conflict
    must be resolved by the en banc court.
    II. The en banc court should follow Joyce.
    In the event this case is heard en banc, there are good
    reasons to follow Joyce over Bibler.
    First, the Bibler rule is a chimera. 1 For the proposition
    that appeal waivers are not valid to bar challenges to illegal
    sentences, Bibler cites to four cases: United States v.
    Portillo-Cano, 
    192 F.3d 1246
     (9th Cir. 1999) (holding that
    an appeal waiver was not valid because the defendant had
    not been given a description of the nature of the charges
    against him in violation of Rule 11 of the Federal Rules of
    Criminal Procedure), United States v. Buchanan, 
    59 F.3d 914
     (9th Cir. 1995) (holding that an appeal waiver was not
    valid because the judge repeatedly told the defendant that he
    had the right to appeal his sentence after the defendant had
    signed the appeal waiver), United States v. Bolinger, 
    940 F.2d 478
    , 479–80 (9th Cir.1991) (holding that an appeal
    waiver was valid but recognizing an exception to a valid
    1
    “A fabled fire-breathing monster of Greek mythology, with a lion’s
    head, a goat’s body, and a serpent’s tail,” or “[a]n organism . . . in which
    tissues of genetically different constitution co-exist as a result of
    grafting, mutation, or some other process.” Chimera, Oxford English
    Dictionary Online (2020).
    UNITED STATES V. WELLS                           29
    appeal waiver where the sentence imposed is not in
    accordance with the negotiated plea agreement), and United
    States v. Gordon, 
    393 F.3d 1044
     (9th Cir. 2004) (holding that
    an appeal waiver was not valid to waive an appeal of a
    restitution order which violated a federal statute). Note that
    none of these cases involved an appeal of a sentence on
    constitutional grounds which rendered the sentence
    “illegal.”
    For the proposition that a sentence is illegal if it violates
    the constitution, Bibler cited to United States v. Fowler, 
    794 F.2d 1446
     (9th Cir. 1986). In Fowler, the district court
    ordered the defendant to pay the costs of his prosecution, as
    authorized by the statute of conviction, after he was
    convicted of three counts of willfully filing false income tax
    returns. 
    Id. at 1448
    . The defendant appealed, arguing that the
    imposition of costs was an unconstitutional burden on his
    right to cross-examination, jury trial, and compulsory
    process. 
    Id. at 1449
    . The Fowler court held that requiring the
    defendant to pay the costs of his prosecution was not
    unconstitutional and affirmed the sentence as legal under
    Federal Rule of Criminal Procedure 35. 2 
    Id. at 1450
    .
    Fowler decided whether a sentence was illegal for
    purposes of a Rule 35 motion. It did not decide what
    constitutes an illegal sentence for the purpose of rendering
    an otherwise valid appeal waiver ineffective.
    2
    When Fowler was decided, Rule 35 allowed a criminal defendant
    to move the court to “correct an illegal sentence” or “correct a sentence
    imposed in an illegal manner.” 
    Id. at 1449
     (internal citations omitted).
    However, Rule 35 has since been amended to allow a defendant to move
    the district court to correct a defendant’s sentence within fourteen days
    if the sentence resulted from “arithmetical, technical, or other clear
    error.” Fed. R. Crim. Proc. 35.
    30                UNITED STATES V. WELLS
    Thus, Bibler combined two distinct lines of cases to
    create a hybrid rule that appeal waivers are never valid to bar
    appeals of sentences when those appeals are brought on
    constitutional grounds.
    This rule is problematic for several reasons. There is
    nothing about waiving the right to appeal, even on
    constitutional grounds, that is entitled to special protections
    from this court. Waiver of constitutional rights is a common
    occurrence in the criminal law context; every time a
    defendant takes the stand in his own defense, he waives his
    right not to testify. And “[t]here is, of course, no
    constitutional right to an appeal.” Jones v. Barnes, 
    463 U.S. 745
    , 751 (1983).
    But most importantly, the Bibler rule puts judges in the
    awkward position of reaching the merits of an appellant’s
    constitutional claims before deciding whether the appeal
    should be dismissed on waiver grounds. This backwards
    analysis is reflected in the majority’s own opinion and has
    the unintended consequence of essentially nullifying all
    appeal waivers. Under Bibler, all a defendant must do is
    argue, even baselessly, in an appellate brief that his sentence
    violates the Constitution, and he can evade what was an
    otherwise valid and binding appeal waiver.
    Reaching the merits of an appeal before dismissing it
    forces judges to answer more questions than necessary to
    dispose of a case, which violates the cardinal principle of
    judicial restraint that “if it is not necessary to decide more, it
    is necessary not to decide more.” PDK Labs. Inc. v. Drug
    Enforcement Admin., 
    362 F.3d 786
    , 799 (C.A.D.C. 2004)
    (Roberts, J., concurring in part and concurring in judgment).
    The Bibler rule is also like the two-step qualified
    immunity analysis from Saucier v. Katz, 
    533 U.S. 194
    UNITED STATES V. WELLS                      31
    (2001), which required courts to determine first whether the
    plaintiff alleged a violation of a constitutional right and next
    determine whether that right was clearly established, in that
    order. The Supreme Court overruled Saucier in Pearson v.
    Callahan, 
    555 U.S. 223
    , 237 (2009), holding that courts
    could answer these two questions in any order. The court so
    held because, like the Bibler rule, Saucier “require[d] courts
    unnecessarily to decide difficult constitutional questions
    when there is available an easier basis for the decision . . . .”
    Brosseau v. Haugen, 
    543 U.S. 194
    , 201–02 (2004)
    (Breyer, J., joined by Scalia and Ginsburg, JJ., concurring).
    The majority’s efforts to “clarify” Bibler unfortunately
    only muddy the waters. The majority sets forth a new rule
    which would limit the scope of the Bibler exception to apply
    only in cases where appellants have waived a “general right
    to appeal” and not an appeal based on a “specific”
    constitutional right. But this is a distinction without a
    difference. Prosecutors will easily avoid the majority’s new
    rule by incorporating by reference the Constitution and its
    amendments in the text of each appeal waiver—or perhaps
    they will begin attaching the Bill of Rights as an addendum
    to their plea agreements.
    If Joyce were the applicable rule in this case, I would
    concur in the judgment to the extent that it dismisses Wells’s
    appeal. However, because it is not within my authority to
    apply Joyce where Bibler’s irreconcilable holding
    simultaneously binds the court, I respectfully dissent.