dissenting.
A defendant may waive the right to an appeal, but only if the defendant makes the waiver knowingly and voluntarily.5 United States v. Rutan, 956 F.2d 827, 829 (8th Cir. 1992); United States v. Wessells, 936 F.2d 165, 167 (4th Cir.1991); United States v. DeSantiago-Martinez, 38 F.3d 394, 395 (9th Cir.1994). In this case, the prosecution agreed to recommend a suspended sentence in exchange for Michelsen’s guilty plea. The written plea agreement provided that Michel-sen would waive his right to an appeal. However, the magistrate judge who heard this ease expressly nullified that waiver.
According to medical reports, severe epilepsy and asthma have totally disabled Michelsen. Unable to work since 1994, Michelsen owns no assets and has incurred extensive medical liabilities. In light of his physical disability and financial inability to pay, it would seem that neither Michelsen nor the prosecution anticipated that Michel-sen would actually serve time in prison, notwithstanding the magistrate judge’s right to impose a prison sentence. However, Michelsen’s probation officer concluded in her presentence investigation report that “the defendant ... has no intention of paying child support ... [and] he has no money nor will he ever have money to pay this obligation,” and recommended sentencing Michelsen to the maximum prison term.
Michelsen appeared pro se at his sentencing. The sentencing magistrate judge did not disclose the content of the probation officer’s report and recommendation. Although Rule 32 of the Federal Rules of Criminal Procedure grants a judge discretion to disclose the report, it generally requires the judge grant a defendant and defendant’s counsel the opportunity to comment on information that provides a basis for the defendant’s sentence. This undisclosed information may well have influenced the magistrate judge’s ultimate decision to sentence Michel-sen to the maximum six-month sentence. However, Michelsen did not have an attorney at the sentencing hearing to protect his rights.
During Michelsen’s sentencing, the magistrate judge recognized the defendant’s physical problems and his probable inability to pay past due support payments. The magistrate judge clearly recognized the unusual circumstances in this ease. After questioning the defendant, the magistrate judge retired to chambers with the probation officer. Upon returning, the magistrate judge, in passing sentence, stated:
I have considered the recommendation of the United States Attorney’s Office and have rejected their recommendation. It is clear in this case that the Defendant has made little, if any, effort to obtain funds to help pay for the support of his daughter, that there was many a time during the past years that some employment could have been obtained but because of his illness which he is suffering from—there is no dispute. I’m not suggesting that the Defendant is—is feigning illness of any type whatsoever, but he has used that as an excuse in my opinion without obtaining some employment. There was times where there was part-time employment that could be obtained that could be used to help defray this enormous amount of child support that he has neglected and failed to pay.
This sentence is essentially a sentence of punishment and I recognize that and I am placed in that position, I think, by both the Defendant and the Government by bringing this matter to the Court in the present *875posture and what it is. And accordingly, that is the sentence of the Court.
Sent. Tr. at 19-20.
Then the magistrate judge added:
Mr. Michelsen, you’re advised that you may appeal this sentence within ten days after the filing of the judgment in this matter. That will probably happen within the next day or so. When that is filed you will have ten days to appeal that sentence to one of the judges of the United States District Court.
Id. at 20.
The prosecution did not object.
In light of the magistrate judge’s statements concerning the reasons for the sentence, which were contrary to the recommendation of the prosecutor, I believe the magistrate judge, by his oral direction, and the prosecutor, by failing to object, recognized that the defendant should have the right to an appeal in this unusual case.
In an analogous situation, the Ninth Circuit, in United States v. Buchanan, 59 F.3d 914, 917 (9th Cir.), cert. denied, 516 U.S. 970, 116 S.Ct. 430, 133 L.Ed.2d 345 (1995), has recognized that where a district court orally advises a defendant of his right to appeal at sentencing and the government acknowledges that right by failing to object, the defendant can appeal. That court reasoned:
Litigants need to be able to trust the oral pronouncements of district court judges. Given the district court judge’s clear statements at sentencing, the defendant’s assertion of understanding, and the prosecution’s failure to object, we hold that in these circumstances, the district court’s oral pronouncement controls and the plea agreement waiver is not enforceable.
Id. at 918.
The majority here states the magistrate judge’s “admonition” that Michelsen might appeal his sentence amounted to an inaccurate statement and one not wholly inconsistent with the waiver. However, the magistrate judge twice clearly and precisely advised Michelsen that he could appeal.
I do not construe the magistrate judge’s statements as slips of the tongue or misstatements. Given these directions to Michelsen by the magistrate judge, the government’s failure to object, and the advisability of having a review of the sentence, in the circumstances of this case, I would rule that the waiver of an appeal by Michelsen has been nullified. I would reverse and direct the district court to consider Michelsen’s appeal on the merits.
. Several circuit courts of appeal have concluded that “a waiver is not knowingly or voluntarily made if the district court fails to specifically question the defendant concerning the waiver provision of the plea agreement during the Rule 11 colloquy and the record indicates that the defendant did not otherwise understand the full significance of waiver.” United States v. Marin, 961 F.2d 493 (4th Cir. 1992); United States v. Bushert, 997 F.2d at 1347; United States v. Melancon, 972 F.2d 566, 567 (5th Cir.1992); but see United States v. DeSantiago-Martinez, 38 F.3d 394, 395 (9th Cir.1994) (holding that a Rule 11 colloquy is not a prerequisite to finding a waiver valid). There is considerable doubt that the magistrate judge engaged Michelsen in a sufficient Rule 11 colloquy regarding his waiver of his right to an appeal. However, because of other circumstances arising at the later sentencing hearing, this need not be the basis for determining that Michelsen retained his right to an appeal.