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March 17, 2011

Fifth Circuit distinguishes departures and variances to uphold appeal waiver

An intriguing little issue of sentencing procedures is addressed by the Fifth Circuit today in US v. Jacobs, No. 10-20043 (5th Cir. March 17, 2011) (available here), which gets started this way:

Federal prisoner Marcus Eugene Jacobs pled guilty to one count of possessing stolen mail in violation of 18 U.S.C. § 1708.  In his signed plea agreement, Jacobs generally waived his right to appeal his sentence but preserved his right to appeal an upward departure from the Sentencing Guidelines not requested by the Government.  At sentencing, the district court imposed an upward variance from the Guidelines not requested by the Government.  Jacobs now contends that the upward-departure exception to the waiver allows him to challenge his sentence on appeal.  Because sentencing departures are distinct from sentencing variances, we conclude that the waiver bars this appeal and grant the Government’s motion to dismiss.

March 17, 2011 at 08:30 PM | Permalink


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I'm always happy to see that the offspring are prospering. United States v. Wiggins, 905 F.2d 51 (4th Cir. 1990)(available at http://law.justia.com/cases/federal/appellate-courts/F2/905/51/177146/); see also 3 Fed. Sent. R. 227 (1990-1991), "Waiver of the Right to Appeal under the Federal Sentencing Guidelines," Haines, Roger W. Jr.

Posted by: Bill Otis | Mar 17, 2011 8:50:56 PM

I'm amazed how many lawyers advise their clients to sign these plea agreements when the only thing they get in return is the illusory promise that the government will make a non-binding recommendation for a sentence "within the guidelines." The agreements are long, unnecessarily complicated, and mostly consist of a description of the law that applies whether the agreement is signed or not.

Posted by: Anonymous | Mar 18, 2011 12:26:58 AM

so in other words the govt in the form of it's DA's lied though their teeth to get a plea bargain and then the courts kissed their asses and went along with it.

hope they are enjoying themselves their time is coming.

Posted by: rodsmith | Mar 18, 2011 12:54:17 AM


There are always the dropped charges. I would be pretty surprised if there is a case anywhere where one count of possessing stolen mail can be proven beyond reasonable doubt where more such provable counts are entirely absent.

As for this case, I would say the reservation should be in force but that the final sentence is within the discretion granted to the district court judge so the offender still loses. I would not say that an appeal waiver gives the district court the right to impose any sentence whatsoever (within the statutory range) without review.

Posted by: Soronel Haetir | Mar 18, 2011 1:54:42 AM

Unless there is a mandatory minimum attached to a dropped count, I don't see how dropping charges in federal court benefits a defendant. The prosecution and the PSR always mention the facts behind the dropped counts and the judge may consider the facts of the dropped counts (I believe in most if not all circuits if there is proof by preponderance of the dropped counts the judge must consider them).

So I agree with anon. A federal defendant gives up a lot in return for those two points for acceptance of responsibility that only affect an advisory sentence. I say a lot not even counting the districts where the defendant must waive their right to see Brady material in return for the privilege to plead guilty.

Posted by: Paul | Mar 18, 2011 9:39:23 AM

Paul --

If the defendant resents "the privilege to plead guilty," he has an easy remedy. Plead not guilty and put the government to its proof.

The reason most defendants don't do this is that they know the government has the proof, and their best option is to cut a deal.

Now I agree that the "best option" is unlikely to be an attractive option, but when you've committed a felony and the government has the evidence to prove it, there's a limit on how many "attractive options" you're going to, or should, get.

Posted by: Bill Otis | Mar 18, 2011 10:51:29 AM

my problem is why are supposedly good and great lawyer dumb enough to acccept a contract which is basically what a plea bargain is and NOT know the details of the deal.

sorry if that paper didn't show EXACTLY the amount of time the client was to get i'd tell the DA to kiss off!

then once i had a number on that paper i'd dare the judge to change it!

I'd own his ass! one my civil breach of contract lawsuit was finished with him.

Posted by: rodsmith | Mar 18, 2011 2:11:51 PM


Except the judge is not a party to the agreement. All the plea agreement says is what enhancements the prosecution is going to argue for, what sentence the prosecution is going to recommend etc. It very specifically states (in most cases) that the judge is not bound by that recommendation. And in the cases where the judge is bound the remedy is withdrawal of the plea at which point the defendant can try crafting another deal or go to trial. You would have, as an admitted offender, no legal remedy against the judge. Even without absolute judicial immunity you wouldn't have a legal remedy against the judge because even with a sentence outside what the prosecution recommended you would still be getting the benefit of your bargain.

As Bill said for most felons the best option is not going to be all that attractive.

Posted by: Soronel Haetir | Mar 18, 2011 2:47:28 PM

LOL in which case no REAL defender of an accused american should be saying anything to the DA but KISS my ass i'll see you and the judge in court!

since it IS a contract. What idiot would sign what your saying is basically a BLANK ONE! that the other side can then fill out once your signature is at the bottom...that's simply RETARDED! and if done in the civil side of law would get the lawyer disbared at a MINIMUM!

Wouldn't take a big percentage to demand a trial i figure if 10-20% did the us justice sytem would go BOOM!

Posted by: rodsmith | Mar 19, 2011 12:24:54 AM


"Except the judge is not a party to the agreement."

Sure he/she is! got two choices Accept the agreement made between the Prosecution and Defence or Say NO and the parties either go back to negotiation till all sides are happy or head for a trial the state can't afford to happen too often!

Posted by: rodsmith | Mar 19, 2011 12:27:06 AM


"You would have, as an admitted offender, no legal remedy against the judge."

Think so huh! someone might be able to give me the shaft! but guess what! That's what old sam colt made his equalizer for! you'd better be planning to spend the rest of your life looking over your shoulder before you do it! because I WOULD get you!

Posted by: rodsmith | Mar 19, 2011 12:30:12 AM

Notice I was careful to say "legal" remedy. Of course, the threats you arre so fond of are also admissible character evidence and thus could be used to increase the length of your sentence beyond what it would otherwise be. And the authorities have a generally dim view on threatening judges, whether the actor succeeds in carrying them out or not.

Posted by: Soronel Haetir | Mar 19, 2011 12:40:42 AM

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