A waiver of conviction provision in the appeal does not waive all claims in the appeal. The courts of appeal have ruled that certain constitutional and legal claims survive a waiver of conviction in an appeal agreement. For example, an accused`s allegation that he or she was denied the effective assistance of a lawyer in his or her conviction, United States v. Attar, a.i.a.O.; That he or she was convicted for his or her race, United States vs. Jacobson, 15 F.3d 19 (2d Cir. 1994); or that the sentence exceeded the legal limit, United States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992), is examined by a Court of Appeal on the merits, although a pleading agreement waives the appeal of conviction. The defendants are also trying to find language in the pleading agreement that allows them to appeal on appeal despite the waiver of conviction.

For example, some provisions relating to the waiver of appeal to conviction contain the language that the accused is convicted „in accordance with” or „in accordance with” the penal directives. While the obvious purpose of these provisions is to remind the accused that he or she is convicted in accordance with the criminal guidelines, some defendants have argued that language means „in agreement” or „in agreement” that the accused is properly convicted in accordance with the trial guidelines. Therefore, if the District Court makes an error in the application of the defendant`s sentencing guidelines, the pleading agreement has been violated, which nullifies the waiver of the conviction of the appeal. The Ninth Circle rejected this argument, arguing that the accused`s position would effectively eviscerate the waiver of the conviction of the appeal, which assumes that an error may be made at the time of conviction. See United States v.