UNITED STATES of America, Appellee, v. John Robert ANDIS, also known as Robert Andis, Appellant, 277 F.3d 984

BRIGHT, Circuit Judge. John R. Andis pleaded guilty to transporting a minor in interstate commerce for illegal sexual activity in violation of 18 U.S.C. § 2423(a), after agreeing with the government “to waive all rights to appeal whatever sentence is imposed ... reserving only the right to appeal from an upward or downward departure.” At the time that he pleaded guilty and at his sentencing hearing, Mr. Andis acknowledged the existence of this promise in his plea agreement. He now appeals from the conditions of supervised release that the district court imposed on him at sentencing. Mr.

Andis argues that the conditions of release were illegal because they are generic conditions imposed without regard to the specific characteristics of Mr. Andis or his offense. The United States contends that Mr. Andis waived his right to appeal the sentence imposed by the district court and the conditions were not illegally imposed. A majority of the panel determines that Mr. Andis could not waive his right to appeal an alleged illegal sentence. A different majority remands the merits of Mr. Andis’ claim for further consideration consistent with this opinion. I.

DISCUSSION The United States would have this court adopt the new principle that if done so knowingly and voluntarily, a defendant can waive the right to appeal an illegal sentence imposed by the district court. A holding of this nature would contradict the reasoning of prior Eighth Circuit opinions and would create an unjust rule of law based on little, if any, precedent. In United States v. Michelsen, 141 F.3d 867, 872 (8th Cir.1998), we reasoned that the right to appeal an illegal sentence is “implicitly preserved” despite any waiver.

The government urges this court to limit Michelsen’s applicability to situations where a defendant is collaterally attacking his sentence under 28 U.S.C. § 2255. This contention has already been rejected by a recent Eighth Circuit case, DeRoo v. United States, 223 F.3d 919, 923 (8th Cir.2000), in which we concluded: “As a general rule, we see no reason to distinguish the enforceability of a waiver of direct-appeal rights from a waiver of collateral-attack rights in the plea agreement context.” (citing Latorre v. United States, 193 F.3d 1035, 1037 n. 1 (8th Cir.1999)).

After explaining that there was no need to distinguish between waiver of direct or collateral appellate rights, the court in De-Roo cited Michelsen for the proposition upon which Mr. Andis now relies. In De-Roo, the court explained that waivers of appeal in plea agreements “are not absolute. For example, defendants cannot waive their right to appeal an illegal sentence or a sentence imposed in violation of the terms of an agreement.” 223 F.3d at 923 (citing Michelsen, 141 F.3d at 872).

We have repeatedly held that a defendant in a criminal case may waive his right to appeal if he does so knowingly and voluntarily. See, e.g., United States v. Estrada-Bahena, 201 F.3d 1070, 1071 (8th Cir.2000) (per curiam). Indeed, there are important policy concerns for strictly enforcing a defendant’s waiver of appellate rights. The defendant gives up his statutory right to appeal in exchange for concessions from the government, such as recommending a . lenient sentence. See Michelsen, 141 F.3d at 873.

Allowing a defendant to appeal his sentence forces the government to expend time and resources, which undermine the “bargained-for finality.” Id. Finality is certainly an incentive, but allowing a defendant to appeal an illegal sentence does not obviate the government’s entire benefit. The government enters into plea bargaining with a defendant for a variety of reasons, not simply to avoid appeals. For example, plea bargaining provides the government with the benefit of not having to prepare the case for trial, put on witnesses and evidence, prove each element of the offense to a fact-finder, and risk acquittal.

The sentencing judge is a third party, not bound by the contract reached between the defendant and the government through plea bargaining. The defendant and the government bargain with each other under the assumption that the judge will sentence the defendant within the prescribed parameters of the law. These parameters establish the framework for plea negotiations. Therefore, when a defendant reaches an agreement with the government to plead guilty and waive his right to appeal, he “does not subject himself to being sentenced entirely at the whim of the district court.” See United States v.

Marin, 961 F.2d 493, 496 (4th Cir.1992) (providing examples of sentences based on race or in excess of the maximum statutory penalty as examples of illegal sentences for which appellate review is not waived). The government and the defendant cannot bargain away the defendant’s right to object to the future unlawful actions of a third party. Turning to the merits, we determine that the district court exceeded its discretion by imposing conditions of release on Mr.

Andis that may not bear a reasonable relationship to either the nature and circumstances of the offense or the history and characteristics of the defendant as required by 18 U.S.C. § 3583(

c) and

section 5D1.3(

b) of the United States Sentencing Guidelines Manual. See United States v. Prendergast, 979 F.2d 1289, 1292-93 (8th Cir.1992) (explaining that the terms of supervised release must not involve a greater deprivation of liberty than is reasonably necessary to fulfill the goals of Congress and the Sentencing Commission). As this circuit noted in Prendergast, the conditions that restrict a probationer’s freedom must be “especially fine tuned.” Id. at 1293 (quoting United States v. Tolla, 781 F.2d 29, 34 (2d Cir.1986)).

At sentencing the district court was exceedingly candid in explaining the process by which the conditions were imposed. “As I understand it, this is — these are standard conditions that the probation officers recommend to the Court in this building for this type of offense. And at this stage, I know of no judge who has refused to impose these restrictions.” Based on this statement, it is clear that the court accepted certain standard conditions, some of which appear to have little or no relationship to the defendant.

The district court did not carefully consider whether the conditions of release were “fine tuned” to the crime or the defendant’s individual situation. A district court can use nonjudieial officers, such as probation officers, to support judicial functions, “as long as a judicial officer retains and exercises ultimate responsibility.” See United States v. Kent, 209 F.3d 1073, 1078 (8th Cir.2000) (quoting United States v. Johnson, 48 F.3d 806, 808-09 (4th Cir.1995)) (emphasis in original).

The practice of district courts should not be to adopt the recommendations of the probation report without making specific and reasoned determinations regarding the applicability of the special conditions of release. By their very nature “standard conditions of release,” as recommended by the probation department and adopted by a district court, may not be sufficiently tailored to a given case. II. CONCLUSION Because Mr.

Andis’ liberty interests may have been significantly curtailed without due consideration by the district court, we remand this case to the district court for further proceedings in determining which, if any, of the special conditions of release in question should be applied to Mr. Andis. . The Honorable Stephen N. Limbaugh, United States District Judge for the Eastern District of Missouri. . Judge Kyle, concurring in part and dissenting in part, agrees that Mr. Andis cannot waive his right to appeal an illegal sentence.

Judge Kyle, however, would find that the conditions of release bear a reasonable relationship to the offense and characteristics of the defendant. .Judge Morris Arnold, concurring in part and dissenting in part, agrees that the conditions of release imposed on Mr. Andis should be remanded for further consideration, but would hold that the panel does not have jurisdiction to reach that issue because Mr. Andis’ waiver bars his appeal. . Mr.

Andis objects to five special conditions of release: (1) prohibition from contact with children under the age of 18 without prior written permission of the probation officer and immediate reporting to the probation officer of any unauthorized contact with children under the age of 18; (2) prohibition on engaging in any occupation, business or profession where he has access to children under the age of 18 without prior written approval of the probation officer; (3) prohibition on loitering within 100 feet of schools, parks, playgrounds, arcades or other places frequented by children; (4) submission to search of his person, residence, office or vehicle by a probation officer based upon reasonable suspicion of contraband or evidence of a violation of conditions of release; and (5) prohibition on the purchase or maintenance of a post office box or other type of private mailbox without written approval of the probation officer. .

The district court did respond to the defendant's objection to the conditions of release by commenting, "I think all of these restrictions are appropriate for the conduct this defendant was engaging in.” However, the court offered no elaboration and did not specify how any of the special conditions applied to Mr. Andis' crime or individual characteristics.