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May 5, 2005

Third Circuit enforces appeal waiver post-Booker

The Third Circuit today, in US v. Lockett, No. 04-2244 (3d Cir. May 5, 2005) (available here), rejected the defendant's effort to obtain a resentencing under Booker despite his appeal waiver:

Lockett asks us to invalidate his sentence because he did not know at the time he pleaded guilty that the Supreme Court would later hold that the Sentencing Guidelines are advisory. However, this change in the law cannot effect a change in his plea.... The possibility of a favorable change in the law occurring after a plea agreement is merely one of the risks that accompanies a guilty plea. The record reflects that Lockett knowingly and voluntarily bargained for his plea agreement. He cannot now ask to re-bargain the waiver of his right to appeal because of changes in the law. We hold that where a criminal defendant has voluntarily and knowingly entered into a plea agreement in which he or she waives the right to appeal, the defendant is not entitled to resentencing in light of Booker.

In Lockett, the Third Circuit asserts it is joining "four other circuits" in reaching this conclusion, but in fact I believe that the Third Circuit is the last to formally rule on this issue.  However, as I have argued in posts here and here, I am not sure the circuits are reaching ideal conclusions.

The Third Circuit's decision in Lockett is noteworthy given the circuit's practice of remanding seemingly every case for resentencing on Booker grounds with a standardized explanation.  But, in its Davis account of its practices, as detailed here, the Court did explain that it was expressing "no view on waiver or alternative sentences."

UPDATE (two weeks later):  An extremely informed reader sent me an e-mail providing a very  helpful addendum on retroactivity matters:

Third Circuit's decision in Lockett [does not make] the Third Circuit the last to formally rule on the validity of waivers. The Fourth Circuit still has the issue under consideration in U.S. v. George Blick, No. 04-4887, which was argued March 18.  There should be a decision any day.  Also, I think that the D.C. Circuit still has not issued anything, but my recollection is that the U.S. Attorney's Office doesn't insist on appeal waivers (at least, it didn't in the past, because the district court judges wouldn't accept them, but that may have changed).

May 5, 2005 at 01:58 PM | Permalink


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