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May 4, 2007

Ninth Circuit upholds appeal waiver

As recently discussed here, appeal waivers have been shown to undermine consistency in federal sentencing and thus might be viewed as invalid on public policy grounds in light of the Sentencing Reform Act's interest in more uniform sentencing outcomes.  Nevertheless, even after Blakely and Booker, appeal waivers remain a central part of federal sentencing practice and circuit rarely hesitate to uphold their terms.

The latest example of these realities comes from the Ninth Circuit work today in US v. Bibler, No. 06-30375 (9th Cir. May 4, 2007) (available here).  Bibler upholds an appeal waiver and concludes its discussion with this general statement of the Ninth Circuit's approach to such provisions in plea agreements:

If defendants intend to preserve a larger subset of their appellate rights, this must be bargained for in the plea agreement. For instance, defendants could reserve the right to appeal in case of plain error, or in case the district court issued a sentence that exceeded a particular period of time.  But absent such a bargained-for term, or the applicability of an exception, a knowing and voluntary waiver of appellate rights will preclude substantive appellate review in this court.

May 4, 2007 at 01:08 PM | Permalink


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I find the timing of this case interesting, because by either accident or design, I fear it will be fatal to the pipeline cases that may otherwise have been helped by a good result in Rita/Clairborne. The case points out that if the court sentences to less than the statutory maximum, the sentence is not "illegal" and the waiver of appeal not excused. Therefore, assuming that we otherwise could have argued after Rita/Clariborne that the court imposed an illegal sentence or more likely, imposed the sentence in an illegal manner, Bibler will be troublesome.

Posted by: greg silvey | May 4, 2007 1:29:07 PM

I can't imagine the court upholding such unequal "bargaining," with such consequences, in a case that didn't involve a criminal defendant.

Remember: prosecutors aren't trained to do justice, although that is their duty. They're trained to jam people. There's no negotiation when it comes to terms of a plea -- the agreements are almost invariably policy set by their (elected) boss.

Posted by: rothmatisseko | May 4, 2007 2:33:36 PM

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