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October 17, 2012

Fifth Circuit holds district judge cannot accept plea agreement and then strike appeal waiver provision

The Fifth Circuit has an intriguing new ruling addressing whether a "district court had the authority to strike [defendant]’s appeal waiver" while still accepting his guilty plea agreement. The decision comes in US v. Serrano-Lara, No. 11-41269 (5th Cir. Oct. 16, 2012) (available here), and here is a key passage from the panel's ruling:

Here, the district court’s striking of the appeal waiver was tantamount to rejection of the plea agreement under Rule 11(c)(5).  Hence, the court should have followed the procedure enunciated in that rule.  On the other hand, a court choosing to accept a plea agreement does not then have the option to perform a judicial line-item veto, striking a valid appeal waiver or modifying any other terms.

Our prior holdings, together with the persuasive authority of our sister circuits, counsel in favor of prohibiting a district court from striking a valid appeal waiver.  Therefore, we hold that the district court did not have the authority to strike Serrano-Lara’s appeal waiver, and he has thus waived his right to appeal.

October 17, 2012 at 03:51 PM | Permalink


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To see that the Fifth Circuit's holding is not only correct but obvious, one need only consider this question: What would we make of it if the government and the defendant struck a plea deal in which one of the provisions was that the sentence would not exceed ten years; the court accepts the deal; and then afterwards strikes the sentence limitation and imposes fifteen years?

Would anyone think such a thing is acceptable?

Of course not. Once the parties enter an agreement, each has a reliance interest on the terms agreed to. If the court finds the waiver unacceptable, the answer is to refuse the bargain ab initio, not accept it and then re-engineer it to one party's liking.

Posted by: Bill Otis | Oct 17, 2012 4:02:36 PM

The ruling is obviously correct, but the Judge who wrote the opinion is almost as dumb as the district judge. 18 U.S.C. § 3B1.1? WTF is that? Why not try U.S.S.G. §3B1.1.

Posted by: Jack | Oct 17, 2012 5:19:02 PM

Well bill i guess this means that 200 thousnad plus individuals on the Sex offender registry who's plea predated megan's law therfore never mentioned the registry can now tell the feebs to fuck off? A deal is a deal?

After all if you can't take something away from the deal as written. Certaily the reverse would also be true. You cannot add to it either.

Posted by: rodsmith | Oct 17, 2012 11:08:03 PM

rodsmith --

I don't believe sex offenders made any deal with the legislative branch, which designed the requirements of Megan's Law.

And if, as SCOTUS has held, the registration requirement is not a punishment for a crime ab initio, it can't represent ADDED punishment.

Posted by: Bill Otis | Oct 17, 2012 11:36:49 PM

horse shit bill. Last time i looked probation was in fact and in law a punishment. The registry has become thanks to all the little illegal add on's lifetime probation. The only things that have changed is the space between visits and where to report.

Plus as far as this goes!

"I don't believe sex offenders made any deal with the legislative branch, which designed the requirements of Megan's Law."

but if i'm not mistaken the 3 diff branchs of the United States Govt are required to give equal weight and deference to decisons from the other branchs.

Those that have a contract that says you have satisfied your legal requirments after "X" time is also a legal contract as far as the legislative branch is concerned. Otherwise each branch could do pretty much whatever the fuck it wanted and tell the others to kiss off.

So again we come back to that nasty little problem

If you substitute the following crimes for sex crime

identity theft

and the other 2,000 on the books

If it would not be legal applied to them. It's not legal when apllied to sex offenders.

I'm pretty sure if some fucktard politician tommorrow announced they wanted a law that said drunks could no longer live or work or walk within 2,000 feet of the nearest bar, club or places where alchacol congragate applied to any conviction in the last 50 years. The courts would tose it so fast the fucktard would sprain his/her back. Shortly to be followed by riots in the street and violenct aginst the fucktard and his/her family.

There fore it's illegan when applied to anyone else.

Posted by: rodsmith | Oct 18, 2012 3:04:35 PM

What happened bill no response to the above?

Posted by: rodsmith | Oct 22, 2012 12:26:05 AM

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