It is well settled that a defendant in a criminal case may waive "any right, even a constitutional right," by means of a plea agreement. United States v. Ashe, 47 F.3d 770, 775-76 (6th Cir. 1995). The sine qua non of a valid waiver is that the defendant enter into the agreement knowingly and voluntarily.

The only two cases which discuss the applicability of § 1029(a)(4) to tumbling cellular phones do not persuade us to reach a result other than the one we are led to by a commonsense reading of the statutory language. In United States v. Ashe, 47 F.3d 770, 772 (6th Cir.), cert. denied, ___ U.S. ___, 116 S.Ct. 166, 133 L.Ed.2d 108 (1995), Richard Ashe was charged with a violation of § 1029(a)(4) for trafficking in tumbling cellular phones. Finding that § 1029 did reach Ashe's conduct, the Sixth Circuit concluded that tumbling cellular phones are access "devices that permit and facilitate the theft of `air time,'" id. at 774, but did not analyze whether such a phone, in addition to being an access device, can be considered device-making equipment.

The right to appeal and the right to seek post-conviction relief are statutory rights that may be waived. A knowing and voluntary waiver in a plea agreement not to file any motions or pleadings pursuant to 28 U.S.C. § 2255 is an effective means to bar such relief. United States v. Toth, 668 F.3d 374, 378-79 (6th Cir. 2012); Palmero v. United States, 101 F.3d 702 (6th Cir., Nov. 21, 1996) (unpublished table decision) 1996 WL 678222, at *2; United States v. Bazzi, 94 F.3d 1025, 1028 (6th Cir. 1996); United States v. Ashe, 47 F.3d 770, 775 (6th Cir.), cert. denied, 516 U.S. 859 (1995); United States v. Wilkes, 20 F.3d 651 (5th Cir. 1994). Thus, Mainegra-Reyes' claim is barred because the waiver contained in his plea agreement is sufficient to bar relief in this case.

The Sixth Circuit has determined that a criminal defendant may waive "`any right, even a constitutional right' by means of a plea agreement." United States v. Fleming, 239 F.3d 761, 763 (6th Cir. 2001) (citing, United States v. Ashe, 47 F.3d 770, 775-76 (6th Cir. 1995), cert. denied sub nom. Daughtrey v. United States, 516 U.S. 859 (1995). The right to appeal and the right to seek post-conviction relief are statutory rights that may be waived.

The right to appeal and the right to seek post-conviction relief are statutory rights that may be waived. A knowing and voluntary waiver in a plea agreement not to file any motions or pleadings pursuant to 28 U.S.C. § 2255 is an effective means to bar such relief. Palmero v. United States, 101 F.3d 702 (6th Cir., Nov. 21, 1996) (unpublished table decision) 1996 WL 678222, at *2; United States v. Bazzi, 94 F.3d 1025, 1028 (6th Cir. 1996); United States v. Ashe, 47 F.3d 770, 775 (6th Cir.), cert. denied, 516 U.S. 859 (1995); United States v. Wilkes, 20 F.3d 651 (5th Cir. 1994). The reason Hodge is barred from raising these two claims is because the waiver contained in his plea agreement is sufficient to bar relief in this case.

(The Government chose not to appeal.) The only guidance to be found in the Sixth Circuit on the definition of "account" comes from United States v. Ashe, 47 F.3d 770 (6th Cir. 1995), a case which dealt with a defendant charged with trafficking in altered cellular telephones capable of illegally obtaining roaming cellular telephone services by using a telephone tumbler. The altered cell phones did not tap into a customer account.

"It is well settled that a defendant in a criminal case may waive any right, even a constitutional right, by means of a plea agreement." United States v. Fleming, 239 F.3d 761, 763-64 (6th Cir. 2001) (citing United States v. Ashe, 47 F.3d 770, 775-76 (6th Cir. 1995)). "The sine qua non of a valid waiver is that the defendant enter into the agreement knowingly and voluntarily."

A knowing and voluntary waiver in a plea agreement not to file any motions or pleadings pursuant to 28 U.S.C. § 2255 is an effective means to bar such relief. Goodrum v. United States, 126 Fed. Appx. 713 (6th Cir., March 29, 2005), (unpublished decision), available in 2005 WL 705772, cert. denied, 126 S.Ct. 224 (2005); Palmero v. United States, 101 F.3d 702 (6th Cir., Nov. 21, 1996) (unpublished table decision) 1996 WL 678222, at *2; United States v. Bazzi, 94 F.3d 1025, 1028 (6th Cir. 1996); United States v. Ashe, 47 F.3d 770, 775 (6th Cir.), cert. denied, 516 U.S. 859 (1995); United States v. Wilkes, 20 F.3d 651 (5th Cir. 1994). Clark's first and second claims, alleging her plea was involuntary and coerced, are barred because the waiver contained in her plea agreement is sufficient to bar relief on those two claims in this case.

The use of scanners or ESN Readers capable of accessing cellular telephone carriers' accounts by transmitting counterfeit ESN and MIN signals to illegally penetrate the airwaves, in order to steal legitimate accounts' air time, has been found to constitute the "theft of `air time' from the individual cellular telephone carriers comprising the national inter-cellular telephone network of companies that are engaged in the commerce of providing cellular telephone services to subscribers, and is, accordingly, in violation of 18 U.S.C. § 1029." United States v, Ashe, 47 F.3d 770, 774 (6th Cir. 1995) (citing cases involving the established mode of interstate commercial theft, stolen credit cards). Indeed, the U.S. Congressional legislative history specifically points to the outlawing of all cloned cellular phones as the purpose of the statute.

Cases construing § 1029 as it applies to the cellular telephone industry have involved "tumbling" cellular telephones. See United States v. Brady, 13 F.3d 334 (10th Cir. 1993); United States v. Bailey, 41 F.3d 413 (9th Cir.), cert. denied, ___ U.S. ___, 115 S.Ct. 2563, 132 L.Ed.2d 815 (1994); United States v. Ashe, 47 F.3d 770 (6th Cir. 1995). A "tumbling" cellular telephone is one which is capable of randomly changing either the ESN or MIN to enable the user to obtain a "free ride" through the cellular telephone system by avoiding or defeating access or billing to an individual customer account.