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March 4, 2005

The fate and future of appeal waivers?

A remarkably important and remarkably under-examined feature of the pre-Blakely/Booker world of federal sentencing involved the widespread use of appeal waivers in plea agreements.  As suggested here, we are already seeing some varied circuit approaches to addressing the fate of pre-Blakely/Booker appeal waivers, and of late I have been pondering the law, policy and practice of post-Booker appeal waivers.

Appeal waivers — which can be very broad or quite narrow — have long been controversial in the federal system, and different US Attorney Offices and different district judges have had different policies and approaches to such waivers.  See generally Windows into Sentencing Policy and Practice: the Crack/Cocaine Ratio and Appeal Waivers, 10 Fed. Sentencing Rep. 179 (1998).  Every federal circuit has upheld the generally validity of such waivers of appeal, although a number of judges have expressed concern that such waivers are "inherently uninformed and unintelligent" and that broad appeal waivers frustrate Congress's policy decision in the Sentencing Reform Act to utilize appellate review to help eliminate unwarranted sentencing disparity.  See id. at 181-82.

As detailed in a Second Circuit brief available for download below, the government seems inclined to try to continue to enforce, though motions to dismiss a Booker appeals, ple-Blakely appeal waivers.  But the "old" arguments against enforcing appeal waivers seem especially potent now: (1) from a defendant's perspective, appeal waivers entered pre-Blakely were obviously uniformed and unintelligent concerning the realities of a post-Booker world, and (2) from a system-wide perspective, Justice Breyer's remedial work in Booker asserts that Congress would strongly favor the "retention of sentencing appeals ... to iron out sentencing difference."  Booker, slip op. at 21. 

For these reasons, I think a strong argument can be made that pre-Blakely appeal waivers should now be unenforceable or that circuit courts should now at least review all appealed sentences for reasonableness, as the Eighth Circuit did in Killgo (details here).  And, again because of Justice Breyer's strong advocacy of Congressional interest in appellate review, perhaps district courts post-Booker ought to have renewed concerns about accepting pleas with appeal waivers.

Download government_appeal_waiver_motion_to_dismiss.pdf

March 4, 2005 at 12:05 PM | Permalink

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Comments

In addition to the policy reason of utilizing "appellate review to help eliminate unwarranted sentencing disparity," there is at least one other policy reason (that DOJ should be particularly concerned about) to not strictly enforce appeal waivers that were agreed to pre-Blakely. In this uncertain sentencing world we are living in, if such waivers are strictly enforced prosecutors will find it increasingly difficult to obtain them. A defense attorney will be reluctant to agree to such a waiver if she believes it may prevent her client from benefiting from a future unforeseen Circuit or Supreme Court ruling.

Posted by: DEJ | Mar 4, 2005 1:48:03 PM

DEJ -

How I wish you were right. Unfortunately, many US Attorney's make the appeal waiver non-negotiable. So, it's their way or the highway to a longer prison term. This goes to one of the biggest problems with plea negotiations - the disparity in the number of chips held by each party. The defendant normally has only the I'll go to trial chip, while the USAtty has substantial assistance, additional charges, threats to indict family members,amount of drugs/money involved and more.

Posted by: Richard Crane | Mar 4, 2005 2:09:34 PM

DEJ -

How I wish you were right. Unfortunately, many US Attorney's make the appeal waiver non-negotiable. So, it's their way or the highway to a longer prison term. This goes to one of the biggest problems with plea negotiations - the disparity in the number of chips held by each party. The defendant normally has only the I'll go to trial chip, while the USAtty has substantial assistance, additional charges, threats to indict family members,amount of drugs/money involved and more.

Posted by: Richard Crane | Mar 4, 2005 2:09:34 PM

Richard,
Touche...In light of your response, I have to wonder how many more cards (maybe an equal amount of cards?) a defendant would have if the Booker remedy had called for a "Blakely-ization" of the Guidelines. Thoughts?

Posted by: DEJ | Mar 5, 2005 12:53:20 AM

The Fourth Circuit will be considering the validity of appeal waivers on March 18 when it hears oral argument in United States v. George R. Blick, No. 04-4887. The case arises out of the Eastern District of Virginia, which has what may be one of the broadest waivers in the country, which is also all but non-negotiable: “[T]he defendant knowingly waives the right to appeal the conviction and any sentence within the maximum provided in the statute of conviction (or the manner in which that sentence was determined) on the grounds set forth in Title 18, United States Code, Section 3742 or on any ground whatsoever, in exchange for the concessions made by the United States in this plea agreement.” The Court has ordered rulings in other cases involving dismissal motions held in abeyance until it decides Blick.

Posted by: Fran Pratt | Mar 5, 2005 6:27:27 PM

I have briefed a case to the Fifth Circuit on

appeal waivers. I would love to share my brief.

I also have a point on the unconstitutionality of

the Feeney Amendment under a separation of powers

theory. Even with an appeal waiver, such points

are "systemic"; they cannot be waived. These

assert the "right" of the system rather than

personal rights. As long as you show standing

you can raise them. Bruce W. Cobb

Posted by: Bruce W. Cobb | Mar 11, 2005 10:37:41 PM

please please help, i have a family memeber in 1994 in eastern virginia was indictment on conspiracy to sell i believe 5 or more kilo he had i think 4-5 co-defendents all they sentences were reduced. he was given 280 months fines and 5 years supervised probation. after plea agreement all other the maximum they received was seventy months he has done 11 years in jail and needs to come out. he also gave all information and positive stuff as the plea agreement stated he was arrested based on information only. we need to get him out on some sought of appeal he is entitled to it. he is charged with conspiracy on information and the drug dealers got less time his attoeny as part of conviction was supposed to asiist in an appeal one year later and to date nothing there must be some sought of law to help or where i can write to or show me what to write 11 years is a long time for conspiracy please an immediate answer is needed.
thank you
kathy

Posted by: kathy | Aug 2, 2005 6:19:25 PM

please please help, i have a family memeber in 1994 in eastern virginia was indictment on conspiracy to sell i believe 5 or more kilo he had i think 4-5 co-defendents all they sentences were reduced. he was given 280 months fines and 5 years supervised probation. after plea agreement all other the maximum they received was seventy months he has done 11 years in jail and needs to come out. he also gave all information and positive stuff as the plea agreement stated he was arrested based on information only. we need to get him out on some sought of appeal he is entitled to it. he is charged with conspiracy on information and the drug dealers got less time his attoeny as part of conviction was supposed to asiist in an appeal one year later and to date nothing there must be some sought of law to help or where i can write to or show me what to write 11 years is a long time for conspiracy please an immediate answer is needed.
thank you
kathy

Posted by: kathy | Aug 2, 2005 6:53:44 PM

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