What is the current state of the law on double jeopardy waiver in a criminal case?

The panel majority holds as a threshold matter that under Menna v. New York, 423 U.S. 61, 62 (1975), a double jeopardy claim is not impliedly waived by a defendant's open guilty plea, provided the defendant is not challenging his factual guilt and his claim can be resolved without considering evidence outside the record. Majority opinion at 8-9. I agree with that. The majority also seems willing to accept that a double jeopardy claim not preserved by Menna can be expressly waived by a plea agreement. I agree with that too. But the majority thinks that the comprehensive waiver language in Lemke's plea agreement does not cover his failed double jeopardy claim, which was the mainspring of his defense before he decided to plead guilty to felony murder. That's where I disagree.