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September 30, 2005

Ninth Circuit uses amended footnote to uphold appeal waiver

In a case that keeps on giving, the Ninth Circuit today in US v. Cortez-Arias, No. 04-10184 (9th Cir. Apr. 18, 2005), amended (July 14, 2005), amended again (Sept. 30, 2005) (available here), greatly expanded a footnote in order to uphold a pre-Booker appeal waiver.  Here's a selection from the Ninth Circuit's most recent work in Cortez-Arias:

Cortez-Arias ... knowingly and voluntarily waived the right to appeal every aspect of his sentence, except whether his earlier crimes were "crimes of violence." In exchange for his guilty plea and this waiver, Cortez-Arias received a promise of favorable sentencing recommendations from the United States....

We conclude that Cortez-Arias is bound by the terms of his plea agreement, and we decline to vitiate the terms of his bargained-for exchange with the government.  The express and generally unrestricted waiver of appeal rights forecloses the objections now asserted by Cortez-Arias pursuant to Booker or Ameline.  We join our sister circuits who have reached similar conclusions. [Citing Sahlin from 1st, Bradely from 6th, Parsons from 8th, and Rubbo from 11th.]

I am not certain if this is the first published opinion in which the Ninth Circuit has enforced a pre-Booker appeal waiver.  If so, I am a bit troubled that the Court would use this means to reach a fairly consequential conclusion about the status of appeal waivers.  (Recall that, in posts here and here, I have developed some arguments why appeal waivers, post-Booker, may be invalid on public policy grounds because they violate of the appellate review provisions of the Sentencing Reform Act.)

UPDATE:  An astute reader has reminded me that the Ninth Circuit first upheld a pre-Booker appeal waiver way back in May in US v. Cardenas, 405 F.3d 1046 (9th Cir. 2005) (noted here).  Apparently, Cardenas has been cited about 30 times in other opinions upholding appeal waivers since then, and so now the question is why didn't Cortez-Arias just cite Cardenas.

September 30, 2005 at 12:57 PM | Permalink


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I think the 9th didn't rely on Cardenas only because Ameline III threw a new twist on everything - and Cardenas waiver was based on Booker - while Cortez-Arias received supplemental briefing (as demanded by the Court) after argument and decision (but prior to remand) wanting to know why it should not be sent back after Ameline III.

Posted by: Deuce | Oct 6, 2005 1:20:55 AM

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