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April 5, 2005

More from the 6th Circuit on appeal waivers

In this post last month, I explained why I think strong argument can be made after Booker (1) that pre-Blakely appeal waivers should now be unenforceable or (2) that circuit courts should now at least review all appealed sentences for reasonableness.   But, as noted here last month, the Sixth Circuit in US v. Bradley, No. 03-6328 (6th Cir. Mar. 10, 2005) (available here), joined a number of other circuits in upholding a pre-Blakely appeal waiver to avoid addressing the merits of a Booker claim.

Today the Sixth Circuit in US v. McGilvery, No. 04-1013 (6th Cir. Apr. 5, 2005) (available here), not only upheld an appeal waiver, but it expressed some frustration about having to even consider the issue through a regular appeal:

The Court and the parties have unnecessarily devoted substantial time and resources on this appeal. In order to avoid similar situations in the future, we strongly encourage the government to promptly file a motion to dismiss the defendant's appeal where the defendant waived his appellate rights as part of a plea agreement, and to attach a copy of the appellate-waiver provision and the transcript of the plea colloquy showing the district court's compliance with Rule 11(b)(1)(N). Once the defendant responds, the matter can then be referred to a motions panel for disposition.

April 5, 2005 at 10:29 AM | Permalink


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That is exactly what the US Attorney's Office in the Northern District of Texas is doing and it is quite effective. Instead of a brief they file a motion to dismiss arguing appellate waiver which the Fifth Circuit is now routinely granting.

Posted by: AFPD | Apr 5, 2005 10:52:26 AM

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