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August 26, 2014
Significant Third Circuit ruling on the consequences of a defendant's appeal despite an appeal waiver
A helpful reader alerted me to a significant ruling today by the Third Circuit in US v. Erwin, No. 13-3407 (3d Cir. Aug. 26, 2014) (available here). Here is how the opinion starts:
This case presents the novel question of what remedy is available to the Government when a criminal defendant who knowingly and voluntarily executed a waiver of right to appeal — and received valuable promises from the Government in return — violates his plea agreement by filing an appeal. Christopher Erwin pleaded guilty to conspiracy to distribute and possess with intent to distribute oxycodone, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) and 21 U.S.C. § 846. His agreement included a waiver of right to appeal his sentence if it was within or below the advisory Sentencing Guidelines range that results from a total advisory United States Sentencing Guidelines (“U.S.S.G.”) offense level of 39. The Government agreed not to bring further criminal charges against Erwin in connection with the conspiracy, and it also agreed to seek a downward departure under U.S.S.G. § 5K1.1. The Government fulfilled its part of the bargain; Erwin, who challenges his within-Guidelines sentence on appeal, did not.
For the following reasons, we conclude that Erwin’s appeal is within the scope of his appellate waiver, to which he knowingly and voluntarily agreed, and that he has failed to raise any meritorious grounds for circumventing the waiver. We further conclude that Erwin breached the plea agreement by appealing, and that the appropriate remedy for his breach is specific performance of the agreement’s terms: that is, the Government will be excused from its obligation to move for a downward departure. We will therefore vacate Erwin’s judgment of sentence and remand for de novo resentencing in accordance with this opinion.
Matthew Stiegler in this post at his CA3blog starts his coverage of this Erwin ruling with this astute observation:
The Third Circuit just issued what looks to me like a very significant new criminal sentencing ruling: when a defendant violates an appeal waiver, he can be re-sentenced without the deal. Defendants who plead guilty and waive their appeals (i.e. virtually all federal defendants) can still raise miscarriage-of-justice challenges to their sentences, but the cost of losing such a challenge just went way, way up.
August 26, 2014 at 05:00 PM | Permalink
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I'm wondering, did the defendant somehow file this appeal pro se, or did he do so upon the advice of counsel? Because if it's the latter, I'm not sure this was effective assistance.
Posted by: pc | Aug 26, 2014 10:24:39 PM
It is about time this happened. Defendants, with and without attorneys, regularly appeal despite having an appellate waiver in the plea agreement. The courts just simply dismiss the appeal, after the USAO has had to write a brief and the court has had to devote resources to the case. Plea agreements are contracts...if you breach the contract, you don't get the benefit of the contract. Plain and simple.
Posted by: About time | Aug 26, 2014 10:30:55 PM
It seems to me that the Third Circuit does not understand contract law. If the government alleges a breach and asks for the remedy of voiding the contract then the defendant should also not be bound by the contract. This means that the appeal should be considered on the merits because there is not longer a plea agreement barring an appeal. One could also argue that since the plea of guilty was part of the plea agreement that the defendant should now have the right to go to trial upon remand. Under this ruling it is now the government that is having its cake and eating it too. It can withdraw the 5k1 but was still allowed to assert the appellate waiver on appeal. If the government seeks to void the plea agreement instead of specific performance that also should have consequences.
Posted by: Clint Broden | Aug 26, 2014 10:55:58 PM
"can still raise miscarriage-of-justice challenges to their sentences"
His definition of miscarriage of justice is different than mine. Because I don't see how a within guidelines sentence can be a miscarriage of justice by a judge at sentencing. Now, the guidelines might be unjust as a matter of policy but that is a different kettle of fish. If the defendant was worried about the possibility of an unjust sentence he has an easy remedy--don't agree to the plea in the first case.
Posted by: Daniel | Aug 26, 2014 11:06:36 PM
Clint doesn't understand that most plea agreements (like other contracts) have terms specifying what happens in the event of breach. The breaching party loses the benefit of the bargain, whereas the performing party does not.
Posted by: Procedural default | Aug 27, 2014 12:20:53 AM
Why would a defendant, in his right mind, appeal here? Pro se or not, the government was seeking a 5K reduction as part of the plea agreement. As far as I have been able to ascertain, 5K's can even bust through mandatory minimums.
I'm sure if the defendant was mentally competent enough to format and file a timely appeal pro se, he was mentally competent enough to know this was an abysmal idea. Where's the logic here?
Posted by: Eric | Aug 27, 2014 10:14:58 AM
I've done some research in this for states that allow an Appeal de Novo. In those states, the state can either ask for specific performance (and dismiss the appeal) or consider the contract breached and not be bound by their original offer. They can't, however, do both. In other words, they can't limit the scope of the appeal de novo and then go back on their side of the deal.
That being said, standard appellate review is an entirely different process. There, the appeal waiver is mostly superfluous. Simply by pleading guilty, a defendant waives his right to challenge pretty much any action prior to sentencing (such as denial of a suppression motion). Given this, my experience has been that the state has rarely sought specific performance on an appeal waiver because the result is the same either way.
This one is odd, though. The Court both allowed the government to enforce its benefits of the agreement and go back on its obligations. That's not generally how contract law works and I'm not sure the Court is using "specific performance" correctly. They are also overstating the harm to the government and the benefit to the defendant in this ineffective appeal. Yes, the government had to waste resources defending an appeal, but they got the benefit of limiting its scope to the terms of the agreement (even if, by the terms of the agreement, there shouldn't have been an appeal at all). The defendant, of course, got absolutely no advantage from seeking this appeal. I don't feel sorry for him for that, he was probably told that this would happen, but it's a stretch to say that the defendant had his cake and ate it too.
Posted by: Erik M | Aug 30, 2014 12:16:37 PM