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June 8, 2005

More from the 4th Circuit on appeal waivers

The Fourth Circuit today in US v. Johnson, No. 04-4376 (4th Cir. June 8, 2005) (available here) reiterated the consensus circuit view that "the issuance of Booker after the plea agreement was reached does not render [the defendant's] plea unknowing or involuntary" and thus does not provide a basis for upsetting an appeal waiver.  Of course, another Fourth Circuit panel already cover this ground two weeks ago in Blick (available here), although Judge Michael dissented in Blick asserting that "a defendant in this circuit cannot prospectively waive the right to appeal constitutional violations at sentencing."  Notably, the Johnson Court does not engage with Judge Michael's points in Blick, nor does it address the idea (raised here and here) that it is now against public policy, based in congressional-intent concepts and drawing on Justice Breyer's remedial work in Booker, to let prosecutors and defendants opt-out of appellate review because Congress strongly favors the "retention of sentencing appeals ... to iron out sentencing differences." Booker, Breyer slip op. at 21.

June 8, 2005 at 03:36 PM | Permalink


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Defense attorney
Since plea agreements are contracts as asserted by the majority in Blick, why are they not subject to reformation due to mutual mistake?

Posted by: Vaughan Winborne | Sep 9, 2005 10:45:53 AM

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