Hunter v. United States · ¶18

Second, the Government did not forever “relinquish[ ] its appeal-waiver argument” by failing to correct the court's misstatement. Id., at 12. The prosecutor's swallowed retort at the hearing (“Your Honor, I believe—well, no. I— no”) neither waived nor forfeited, as Hunter claims, the right to seek future enforcement of Hunter's agreement not to appeal. See ibid. Under ordinary litigation principles, a waiver of a right requires some affrmative signal of “abandonment.” United States v. Olano, 507 U. S. 725, 733 (1993). Staying silent—as here, not picking a fght—does not qualify. By contrast, forfeiture generally does happen through silence, because it “is the failure to make the timely assertion of a right.” Ibid. But the proper time for the Government to assert its right to enforce an appeal waiver is not at a sentencing hearing. Rather, it is after a defendant has fled a notice of…

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