At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 9th day of August, two thousand twenty-four. Present: DEBRA ANN LIVINGSTON, Chief Judge, RAYMOND J. LOHIER, JR., RICHARD J. SULLIVAN, JOSEPH F. BIANCO, MICHAEL H. PARK, WILLIAM J. NARDINI, STEVEN J. MENASHI, EUNICE C. LEE, BETH ROBINSON, MYRNA PÉREZ, ALISON J. NATHAN, SARAH A. L. MERRIAM, MARIA ARAÚJO KAHN, Circuit Judges. _____________________________________ Docket Nos. 16-4107(L), 19-3773(Con), 19-3790(Con), 19-3807(Con), 19-3813(Con), 19-3899(Con) ____________________________________ DEREK COOK, CHAD EDWARDS, BRIAN LATULIPE, ANSON EDWARDS, BRYAN HERNE, KAIENTANORON L. SWAMP,

Petitioners-Appellants,

v. UNITED STATES OF AMERICA

Respondent-Appellee. For Petitioners-Appellants: James P. Egan, Assistant Federal Public Defender, Office of the Federal Public Defender, Syracuse, NY. For Respondent-Appellee: Michael F. Perry, Carina H. Schoenberger, Assistant United States Attorneys, for Carla B. Freedman, United States Attorney for the Northern District of New York, Syracuse, NY.

Following disposition of the appeal in this case on October 16, 2023, an active judge of the Court requested a poll on whether to rehear the case en banc. A poll having been conducted and there being no majority favoring en banc review, rehearing en banc is hereby DENIED.

Raymond J. Lohier, Jr., Circuit Judge, joined by Myrna Pérez, Circuit Judge, concurs by opinion in the denial of rehearing en banc.

Richard J. Sullivan, Circuit Judge, joined by Debra Ann Livingston, Chief Judge, and Joseph F. Bianco, Michael H. Park, William J. Nardini, and Steven J. Menashi, Circuit Judges, concurs by opinion in the denial of rehearing en banc.

Alison J. Nathan, Circuit Judge, concurs by opinion in the denial of rehearing en banc.

Beth Robinson, Circuit Judge, joined by Eunice C. Lee and Sarah A. L. Merriam, Circuit Judges, dissents by opinion from the denial of rehearing en banc.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk RAYMOND J. LOHIER, JR., Circuit Judge, joined by MYRNA PÉREZ, Circuit Judge, concurring in the order denying rehearing in banc:

During the in banc poll, the key question before us was whether a collateral-attack waiver in a plea agreement is enforceable even if it results in a complete miscarriage of justice. For reasons I explain below, we should wait for a better case to resolve this important question. These consolidated cases present a set of complicating side-issues that will only obscure our answer.

First, there is the preliminary issue of mootness. The Government and the petitioners agree that the cases are neither constitutionally nor statutorily moot because of the continuing collateral consequences that flow from the petitioners’ § 924(c) convictions and the fact that the petitioners were in custody at the time they filed their petitions. See Nowakowski v. New York, 835 F.3d 210, 226 (2d Cir. 2016) (Article III mootness); Carafas v. LaVallee, 391 U.S. 234, 238 (1968) (statutory “in custody” requirement). I t