Kingsley Ita v. United States

The Fifth Circuit strictly enforces a waiver of appeal and holds that the waiver bars challenging an illegal or unconstitutional sentence. 1 The waiver’s only exceptions are: 1) ineffective assistance of counsel and 2) a sentence exceeding the statutory maximum. 2 There is no miscarriage of justice exception in the Fifth Circuit. For a sentencing court to consider information about a defendant extrinsic to his PSR without at least giving him prior notice violates Fed R. Crim P. 32 & U.S.S.G. Sec. 6A1.3 3 and also violates his due process right to be sentenced upon information which is not false or materially incorrect. 4 Although this error was preserved at Ita’s sentencing, he was denied appellate review because his plea agreement contained a general waiver of appeal. 5 In direct conflict, in the Ninth Circuit, a waiver of appeal does not bar a defendant from challenging an illegal sentence 6 including due process violations. 7 1 United States v. Jones, 134 F.4th 831, 839-840 (5th Cir. 2025) citing United States v. Barnes, 953 F.3d 383, 389 (5th Cir. 2020). 2 Jones, 134 F.4th at 840. 3 United States v. Garcia, 797 F.3d 320, 325 (5th Cir. 2015) 4 United States v. Smith, 13 F.3d 860, 866 (5th Cir. 1994). 5 United States v. Ita, No. 24-40444, 2025 WL 2417750 (5th Cir. Aug 21, 2025) 6 United States v. Wells, 29 F.4th 580, 584 (9th Cir. 2022). 7 United States v. Odachyan, 749 F.3d 798, 801 (9th Cir. 2014). Page 2 of 26