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December 15, 2018

Second Circuit refuses to enforce appeal waiver because it "was unsupported by consideration"

I have never been a big fan of appeal waivers in plea agreements that require defendants to waive any challenge to a sentencing that has not yet taken place. Consequently, I am a big fan of appellate courts that put limits on when and how they will enforce such waivers, and the Second Circuit had a notable recent decision in this area in US v. Lutchman, No. 17-291 (2d Cir. Dec 6, 2018) (available here). In this case, a Second Circuit panel refused to enforce an appeal waiver because the defendant clear got no benefit for agreeing to it. Here are a few key passages from the opinion:

“We construe plea agreements according to contract law principles . . . .” United States v. Riggi, 649 F.3d 143, 147 (2d Cir. 2011) (internal quotation marks omitted).  So, “a guilty plea can be challenged for contractual invalidity, including invalidity based on a lack of consideration.”  United States v. Brunetti, 376 F.3d 93, 95 (2d Cir. 2004).  Yet, “because plea agreements are unique contracts, we temper the application of ordinary contract principles with special due process concerns for fairness and the adequacy of procedural safeguards.” Riggi, 649 F.3d at 147 (internal quotation marks omitted).  Accordingly, “courts construe plea agreements strictly against the Government,” which “is usually the party that drafts the agreement” and “ordinarily has certain awesome advantages in bargaining power.” Ready, 82 F.3d at 559.

Lutchman’s waiver of the right to appeal his sentence was unsupported by consideration.  The plea agreement provided that Lutchman would waive indictment, plead guilty to a violation of 18 U.S.C. § 2339B(a)(1), and waive the right to appeal any sentence lesser than or equal to the 240‐month maximum.  The government would achieve “a conviction without the expense and effort of proving the charges at trial beyond a reasonable doubt” and save the time and expense of an appeal.  United States v. Rosa, 123 F.3d 94, 97, 101 n.7 (2d Cir. 1997).  Lutchman, however, received no benefit from his plea beyond what he would have gotten by pleading guilty without an agreement.  The government refused to agree with Lutchman’s contention that a three‐level reduction under Guidelines § 2X1.1(b)(2) was applicable, and specifically reserved the right to argue to the district court that the reduction was inappropriate.  True, the government agreed not to oppose a two‐level reduction under Guidelines § 3E1.1(a) for Lutchman’s acceptance of responsibility and agreed to move the district court to apply an additional one‐level reduction under Guidelines § 3E1.1(b) for Lutchman’s timely notification to the government of his intention to plead guilty.  But a three‐level reduction under Guidelines § 3E1.1 was available to Lutchman even in the absence of an agreement to waive his right to appeal. See U.S.S.G. § 3E1.1 cmt. 6 (“The government should not withhold [a § 3E1.1(b) motion] based on . . . whether the defendant agrees to waive his or her right to appeal.”).

Moreover, those reductions had no practical impact.  Even after a three‐level reduction to the respective Guidelines ranges advocated by each party, the bottom of the resulting ranges exceeded the statutory maximum.  In fact and effect, the agreed‐upon Guidelines range equaled the 240‐month statutory maximum ‐‐ a sentence the government expressly stated in the agreement that it would recommend.  Furthermore, Lutchman pleaded guilty to the only count charged in the information, and the government has not articulated or identified any additional counts that could have been proven at trial.

The plea agreement here provided Lutchman with no increment of “certainty as to the extent of his liability and punishment,” Rosa, 123 F.3d at 97, and it provided him no “chance at a reduced sentence,” Brunetti, 376 F.3d at 95 (emphasis omitted).  Because the agreement offered nothing to Lutchman that affected the likelihood he would receive a sentence below the statutory maximum, the appellate waiver was unsupported by consideration, and we will not enforce it to bar this appeal .... and [will] proceed to the merits of Lutchman’s arguments.

Unfortunately, for this defendant, after achieving a procedural victory to get his appeal on the merits heard, the panel affirmed his sentence, rejecting his challenges based on procedural and substantive reasonableness. But fortunately for others, this ruling serves as a good precedent for raising concerns about any appeal waivers foisted upon defendants without any clear benefits in return.

December 15, 2018 at 05:31 PM | Permalink


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