dissenting.
Sura waived his right to appeal. He appealed anyway, thinking that he could enjoy the benefits of the plea agreement while avoiding its detriments. Informed at oral argument that this is impossible— that the waiver must be enforced as long as the plea stands, see United States v. Wenger, 58 F.3d 280 (7th Cir.1995)— Sura’s lawyer waffled but ultimately told us that his client wants to withdraw the plea and take the risk of a higher sentence if the prosecutor should add charges.
But once a plea has been accepted and sentence imposed, the plea may not be withdrawn unless reversible error has occurred. Compare Fed.R.Crim.P. 11(d) (withdrawal before sentence) with Rule 11(e) (no withdrawal after sentence). Sura never asked the district court for an opportunity to plead anew, even after the *665judge pronounced a sentence that exceeded Ms expectation.
Counsel argues that the district judge’s failure to follow Fed.R.Crim.P. ll(b)(l)(N) nonetheless allows his client to start over. Rule ll(b)(l)(N) requires the judge to inform the defendant orally about “the terms of any plea-agreement provision waiving the right to appeal or to collaterally attack the sentence.” The district judge failed to comply with this rule. Neither the prosecutor nor defense counsel called the omission to the judge’s attention, then or later.
United States v. Vonn, 535 U.S. 55, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002), holds that the plain-error standard governs when a defendant who did not move to withdraw his guilty plea in the district court argues on appeal that the plea was defective because of a district judge’s failure to comply with Rule 11(b)(1). See Fed.R.Crim.P. 52(b); United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Vonn also holds that, when conducting plain-error review, a court of appeals must consult the whole record and is not limited to the transcript of proceedings in open court. 535 U.S. at 74-76, 122 S.Ct. 1043. United States v. Dominguez Benitez, 542 U.S. 74, 83, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004), adds that, to demonstrate plain error, “a defendant must show a reasonable probability that, but for the error, he would not have entered the plea.” See also United States v. Arenal, 500 F.3d 634, 637-39 (7th Cir.2007).
Sura has not shown that, but for the district judge’s omission, “he would not have entered the plea.” Indeed, Sura has never asserted this, let alone “shown” it. Nor does he maintain that district judges’ compliance with Rule ll(b)(l)(N), which became effective in December 1999, leads a non-trivial fraction of defendants to balk and refuse to plead guilty. The Committee Note explaining the amendment says that the advice is designed to make a clear record and ensure that pleas are voluntary; but for a defendant who knows about the waiver before appearing in court, a reminder from the bench will not affect the plea. Before assuming (as my colleagues do) that a heads-up from a judge will jolt defendants and alter their decisions to plead guilty (the standard under Dominguez Benitez), we ought to know whether this happens frequently, rarely, or never— in either the federal system as a whole or the Eastern District of Wisconsin.
Sura himself has not told us how a statement complying with Rule ll(b)(l)(N) would have affected his decision — not in the district court, not in his appellate brief, and not at oral argument. He has not filed an affidavit describing what he would have done had the district judge followed Rule ll(b)(l)(N), nor has Sura asked for a hearing at which evidence could be adduced.
What Sura would have done is a question of fact. It ought not be resolved by a court of appeals unbidden. Ours is an adversarial system, after all. Contentions never made by one side are never addressed by the other. What justification have we for cutting the prosecutor and district judge out of this process and making a critical finding spontaneously? Just the other day the Supreme Court noted the vital role that a district judge plays in sentencing. See Gall v. United States, — U.S. -, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). Yet my colleagues leave him with no role to play in finding facts on an issue that Dominguez Benitez makes a sine qua non to withdrawing the plea.
If forced to reach a decision without findings or argument — for, to repeat, Sura has never even asserted that he would not have pleaded guilty had the judge complied with Rule ll(b)(l)(N) — I should be *666inclined to doubt that the district judge’s omission made any difference. Here is where Vonn’s holding that the court must consider the whole record matters. The advice required by Rule ll(b)(l)(N) could not have made a difference if Sura already knew that his plea agreement waived any entitlement to appeal.
A district judge might affect a defendant’s choice by explaining that the right to appeal is worth more than a given defendant believes. If, for example, the plea came after some debatable rulings, a judge’s comment that the court of appeals may well take a different view of the subject might dissuade a defendant from promising to forego an appeal. But Rule ll(b)(l)(N) — unlike, say, 18 U.S.C. § 8143(b)(1)(B) — does not call on the district judge to evaluate the probability of reversal; all it requires is that the judge ensure that the defendant knows of the plea agreement’s contents. If the defendant already has that knowledge, then the judge’s repetition will not affect his decision.
The written plea agreement contains Sura’s signature immediately under a section (captioned “Acknowledgement”) stating that Sura has read the agreement and that his lawyer has explained “every part” of it to him orally. Counsel also signed the agreement immediately under this representation: “I have carefully reviewed every part of this agreement with the defendant.” Sura is literate; he has never contended that when he made these representations about what he (and his lawyer) had done, he was lying to the court. Nor has counsel filed an affidavit telling us that he lied when he assured the court and the prosecutor that he explained the agreement to his client.
If either Sura or his lawyer had advanced such an assertion, we would need to decide whether, by recanting, a defendant may obtain a hearing. The usual answer is no, that both litigants and lawyers are bound by their initial representations made in connection with a guilty plea. See, e.g., United States v. Peterson, 414 F.3d 825 (7th Cir.2005); United States v. Stewart, 198 F.3d 984 (7th Cir.1999); United States v. Messino, 55 F.3d 1241, 1248 (7th Cir.1995); United States v. Ellison, 835 F.2d 687, 693 (7th Cir.1987). In civil litigation courts regularly hold people to their contracts whether they read them or not; why should what is normal in civil cases be deemed a miscarriage of justice in criminal cases? It won’t do to reply “because Rule ll(b)(l)(N) requires oral advice”; that tells us that the district judge made an error but does not establish the miscarriage-of-justice component of plain-error review. Omission of an otiose reminder cannot be a miscarriage of justice.
Because Sura has never asserted that he was unaware of the document’s contents, we must take it as established that he read the whole agreement, that his lawyer told him both what it says and what it means, and that Sura consequently had actual knowledge of the waiver. My colleagues’ conclusion that the written agreement counts for nothing cannot be squared with the holding of Vonn that the court must consider the full record, or with the holding of both Vonn and Dominguez Benitez that the defendant bears the burdens of both production and persuasion. But whether or not we accept the representations to which Sura and his lawyer affixed their signatures, we surely cannot act as if the opposite of those assurances were the truth! The most Sura could be entitled to is a hearing at which the state of his knowledge, and his likely response to advice under Rule ll(b)(l)(N), would be explored. Decision on an empty record, bypassing the district judge’s role as trier of fact, is insupportable.
*667My colleagues several times ask whether Sura’s plea was “voluntary.” That’s a red herring. Wenger holds that in-court notice about an agreements waiver clause is not essential to voluntariness. When Rule 11(b) was amended in 1999, that step did not change the meaning of the Constitution. See also United States v. Timmreck, 441 U.S. 780, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979) (a judge’s failure to deliver the advice required by Rule 11 does not spoil a plea’s voluntariness). Rule 11 requires district judges to go beyond the constitutional minimum.
Even if there were a “voluntariness” question in this case, however, Sura’s knowledge of the agreement’s terms would vindicate the plea. That’s the point of Peguero v. United States, 526 U.S. 23, 119 S.Ct. 961, 143 L.Ed.2d 18 (1999), which holds that a defendant’s actual knowledge of a subject on which the district judge failed to supply information required by a Rule of Criminal Procedure forecloses any challenge based on the Constitution. And, to repeat one last time, Sura has never denied having actual knowledge of the waiver.
In the end my colleagues appear to believe that a district judge’s failure to comply with Rule 11(b) should lead to reversal in all but the rare case (such as, for example, a defendant who is a lawyer). How else are we to understand this passage (op. 661-62):
The point of Rule ll(b)(l)(N) is that a signed piece of paper is not enough. Most criminal defendants are not legal experts, which is why Rule ll(b)(l)(N) puts a check in the system in the form of a requirement that the district court explain in plain language what consequences will flow from the guilty plea, including (where applicable) the loss of appellate rights. If the safeguard required by Rule 11 is missing, the record must reveal an adequate substitute for it, and the defendant must show why the omission made a difference to him.
This approach, which my colleagues attribute to United States v. Murdock, 398 F.3d 491 (6th Cir.2005), has a respectable history; the Supreme Court said much the same thing in McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969). But Rule 11(h) was added in 1983 to abrogate McCarthy, and decisions such as Vonn and Dominguez Benitez place on defendants the burden of showing plain error if no one alerted the district court to the problem. A district judge ought to ensure that the defendant knows about important parts of a plea bargain (this is the sense in which the Rule treats the writing alone as insufficient), but this does not imply that every omission must have affected the decision to enter the plea. There are ways other than oral advice from a judge to show a defendant’s consent; this case illustrates the point.
To say that Sura’s signature on a written agreement is not dispositive is not to say that the state of his knowledge must be ignored. If Sura were not literate in English, or if his lawyer had filed an affidavit revealing that, despite appearances, Sura did not know of the waiver, then an evidentiary hearing could be held to explore where the truth lies. But to conclude, as my colleagues do, that because Rule ll(b)(l)(N) is designed to place on the record the fact that defendants are aware of waivers, then knowledge of a waiver imparted by other means must be ignored, is to repeat the error that led the Supreme Court to reverse the court of appeals in Vonn and Dominguez Benitez.
The possibility that the district judge erred in calculating the range under the Sentencing Guidelines does not help Sura. First, whether any error occurred is unclear (and will remain so until proceedings *668on remand). Second, an inquiry into the merits is exactly what a waiver of appeal blocks. Sura gave up this line of argument in exchange for concessions by the prosecutor. We cannot properly make a waiver’s validity depend on acts that postdate the plea’s acceptance. See, e.g., Nunez v. United States, 495 F.3d 544 (7th Cir.2007); United States v. Joiner, 183 F.3d 635, 644-45 (7th Cir.1999); Jones v. United States, 167 F.3d 1142, 1145 (7th Cir.1999).
Many circuit judges are attracted to the idea that guilty pleas entered after inadequate advice, whether from the judge or from defense counsel, should be set aside more or less automatically. For a recent example, see Hoffman v. Arave, 455 F.3d 926 (9th Cir.2006) (bad advice given by counsel during plea negotiations is ineffective assistance, and defendant need not allege or prove that, if the advice had been better, he would have entered a different plea), rehearing en banc denied over a dissent of seven judges, 481 F.3d 686 (9th Cir.2007), cert. granted under the name Arave v. Hoffman, — U.S. -, 128 S.Ct. 532, 169 L.Ed.2d 371 (2007). But the Supreme Court has a different view, exemplified not only by Vonn and Dominguez Benitez but also by Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) (“to satisfy the ‘prejudice’ requirement, [a] defendant [who maintains that ineffective assistance of counsel led to a guilty plea] must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.”).