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April 28, 2022
Sixth Circuit panel grants mandamus because district judge rejected a plea deal with an appeal waiver the wrong way
Earlier this week, a Sixth Circuit panel issued a notable ruling in In Re United States of America, No. 21-1318 (6th Cir. April 26, 2022) (available here). At issue was the behavior of a District Judge who was unwilling to accept a plea agreement with an appeal waiver, and the panel was troubled the district court failed to provide a case-specific account for why a (somewhat limited) waiver was problematic:
What is particularly troubling is that the court’s reasoning would seemingly prohibit every plea agreement containing appeal waivers, regardless of the defendant’s case, the agreement’s charging or sentencing terms, or the parties’ reasons for negotiating those waivers. We cannot credit the district court’s argument that it engaged in an individualized assessment simply because it inserted the phrase “the circumstances of this case” at various points in its opinion. Without more explanation from the court, such language is mere surplusage....
To summarize, a district court does not possess unrestrained discretion to reject a plea agreement. It must, among other things, make an individualized assessment of the agreement and predicate its decision on the specific facts and circumstances presented. Because the district court here failed to do that, this is the narrow circumstance in which the district court abused its discretion. Accordingly, the United States has a clear and indisputable right to mandamus on this ground.
Some (now dated?) research has highlighted the "uneven practice of trading sentencing concessions for waivers" and that "some defendants appear to receive neither greater certainty nor leniency in return for signing wide-open and unlimited waivers of their rights to review." More generally, I generally agree with the District Court's stated policy concerns with all appeal waivers: "The court explained its belief that appeal waivers 'embargo' trial court mistakes, 'insulate' the government’s conduct 'from judicial oversight,' effectively 'coerce' guilty pleas with offers 'too good to refuse,' and 'inhibit[] the development of the Sentencing Guidelines'.”
But, even though I think appeal waivers should be viewed as void as against public policy, circuit courts have all regularly upheld various versions of this (government labor-saving) device. (Early on, eager to limit appeals, many circuits claimed that an appeal waiver limited their jurisdiction to consider an appeal, but eventually they moved away from this anti-textual claim.) Upon first seeing this Sixth Circuit opinion, I was concerned this panel might assert a judge could never reject an appeal waiver (which prosecutors argued), but the message from the opinion instead is that district judges need to provide an "individualized assessment" in order to do so.
Prof Carissa Hessick, who has written a great book on plea bargaining, calls parts of the Sixth Circuit panel opinion "bonkers" in this Twitter thread. She hopes the "Sixth Circuit decides to hear this case en banc and to reverse this terrible panel decision," but I am not holding my breath.
April 28, 2022 at 11:43 AM | Permalink
Comments
The legality of appeal waivers is stare decisis in the Sixth Circuit (and everywhere else). And it's not new stare decisis. District courts are not free to just decide that settled the weighing of factors by the court of appeals is wrong, "and I'll correct it." That's not how it works.
The reason the courts of appeals are unanimous on this is really easy to see. Since you can waive your constitutional right to a trial of guilt or innocence (which determines whether you'll go to jail at all), a fortiori you can waive your mere statutory right to an appeal of the sentencing, which determines only how long you'll be there.
Still, I kind of hope with Doug that the en banc Sixth Circuit goes the other way, creating a circuit conflict that gets to SCOTUS. The defense bar has its flights of fancy to be sure, but if it thinks SCOTUS would come its way on this issue, it's been smoking more of a certain substance than I had previously believed.
Posted by: Bill Otis | Apr 28, 2022 5:21:48 PM
Bill, the Sixth Circuit panel opinion actually makes quite clear that district court can sometimes reject pleas deal with appeal waivers: "That appeal waivers are enforceable does not mean that district courts lack the discretion to scrutinize them when deciding whether to accept a plea agreement. In the same way, it also does not mean that district courts necessarily abuse their discretion when they reject what they reasonably perceive as an overly broad appeal waiver.... So long as the district court’s assessment is soundly based on the circumstances of the case and does not frustrate prosecutorial independence, we generally do not otherwise limit what the district court may consider. Therefore, a court may consider the propriety of every term in a proposed plea agreement — including terms such as sentencing-appeal and collateral-review waivers."
Prof Hessick is concerned by the panel opinion's limits on "categorical rejections" of appeal waivers, but it is quite clear that this opinion still permits case-specific rejections of appeal waivers (especially broad ones that would foreclose appeal of "any sentence over the government’s recommendation, seek relief under the First Step Act, and file ineffective-assistance and
prosecutorial-misconduct claims.")
Posted by: Doug B. | Apr 29, 2022 8:37:15 AM
There's also an interesting discussion about whether judge overstepped his bounds under Fed. R. Crim. P. 11(c)(1). I blogged the case here. https://paulmollicafederalcourtsblog.com/2022/04/26/mandamus-appropriate-remedy-to-correct-violation-of-fed-r-crim-p-11-and-rejection-of-plea-agreement-sixth-circuit-holds/
Posted by: Paul W. Mollica | Apr 29, 2022 10:04:13 AM
Doug --
Still trying to turn the radical defense bar's 12-0 drubbing in the circuits into some sort of victory?? My goodness.
Mandamus is very, very hard to get, and the reason it came down in this case is the district judge pretty clearly signaled he is against appeal waivers generally, although he tried (unsuccessfully and misleadingly) to dress it up. But the Sixth Circuit panel wasn't fooled, which is why the government got this extraordinary remedy.
I have previously happily conceded that there are some theoretical plea bargain terms that wouldn't survive (such as that the defendant agrees to cut off his hands). But the standard waiver of sentencing appeal has been here for more than three decades and is anything but exotic.
Of course if the defendant or his lawyer don't like it, here's the remedy: Don't sign it. Exercise the constitutional rights the defense so loudly claims are being buried. Go unbury them and demand a trial. The defendant can walk away from any proposed bargain he likes for any reason he likes. If he doesn't walk away fine, but then it's time to quit whining about it.
The irony here is that it wasn't the defense lawyer who brought this about. He got a great deal and he knew it. It was the ideological district judge who wants to run the show in his ideological way, rather than accept something that (1) the Circuit long ago approved, and (2) both parties wanted.
I repeat: The reason the courts of appeals are unanimous in approving appeal waivers is really easy to see. Since you can waive your constitutional right to a trial of guilt or innocence (which determines whether you'll go to jail at all), a fortiori you can waive your mere statutory right to an appeal of the sentencing, which determines only how long you'll be there.
But let me ask anyway: Why do you think your side is losing all the circuits? Is it that the appellate judges are just too stupid? Corrupt? Bought off? What then?
Posted by: Bill Otis | Apr 29, 2022 3:16:01 PM
Bill, I think the reason sentencing appeal waivers have been widely embraced is largely because most circuit judges do not like most sentencing reviews (and most district judges do not like being reviewed) --- and perhaps also because many federal judges are former federal prosecutors who see the benefits, but few of the detriments, of this labor-saving device. Part of the problem, no doubt, is that far too many low-level drug cases are brought into the federal system (Justice Scalia complained about this many years ago). The understandable attitude in many of these cases is that if defendants are pleading guilty, whatever sentence they get is "good enough for government work" and not worth the time or energy for any federal appellate review. Getting these cases right, it seems, is less important to everyone than just getting them done.
And that is the key point about distinguishing waiver of trial and waiver of a sentence appeal. The trial is about getting the binary issue of guilt right -- and that is a matter that can be reasonably assessed by a defendant before a trial. But sentencing is about getting the nuanced issues Congress set out in 3553(a) and the USSG right --- and that is a matter that is quite hard for anyone to get right. Indeed, it is because this is so hard, circuit judges generally do not want to spend time second-guessing what the district judges did (this is also why reasonableness review has been so weak), and so circuit judges are generally happy to just bless the waiver of this review. But that does not mean society is well served in all or even most cases when prosecutors can and do ask defendants to give up a right that Congress thought was important to build into our modern sentencing system.
Let me ask you this: would you advocate for a bill in Congress that just entirely eliminated the statutory right to appeal sentences EXCEPT on constitutional grounds? You clearly think it is a good idea for prosecutors to be able to force defendants to give up this right as part of the plea process. But why not just then make this a consistent and enforceable reality for all by just seeking the wholesale elimination of the statutory right to appeal sentences altogether (except for constitutional issue like IAC)?
Posted by: Doug B. | Apr 30, 2022 10:12:46 AM
Doug --
"Let me ask you this: would you advocate for a bill in Congress that just entirely eliminated the statutory right to appeal sentences EXCEPT on constitutional grounds?"
Probably not, for two reasons. First, I want the government to maintain its right to appeal (which seldom happens, but it puts Gertner-type district judges on notice). Second, as always happens with the defense bar, "constitutional grounds" will balloon to mean anything and everything, just as in the compassionate release provision of First Step Act, "extraordinary and compelling" has swelled to mean "anything the judge feels like and/or the defense lawyer can talk him into."
"You clearly think it is a good idea for prosecutors to be able to force defendants to give up this right as part of the plea process."
Wrongo. As I keep saying, and as keeps getting ignored, prosecutors cannot FORCE a defendant to do anything in bargaining, or indeed to bargain at all. (And hundreds and hundreds of defendants in fact go for a trial). What a prosecutor can do is offer some concession and refuse others. That's it. For the most part, the defense bar lives with this and often goes to town with it. It's no coincidence that the most sulfuric criticism of bargaining comes, not from practitioners, but from the professoriate, like you and my Tar Heel buddy Carrisa.
Finally, I can't help observing that you appear to have become -- dare I say it??? -- a BIG GOVERNMENT GUY. That is, instead of letting the parties work it out on their own, as happens hundreds of times every week, and as happened quite amicably in the case that's the subject of this entry, you want a government big shot (the judge) to impose his own agenda while the agreed-upon outcome of the parties can go to a warm place.
Gads, I need my smelling salts.
Posted by: Bill Otis | Apr 30, 2022 6:21:21 PM
Wanting the help protect the individual from the power of the state to punish excessively and wrongly/illegally and to be concerned about insulating those punishment choices from judicial review makes me the big government guy, Bill? Ha, you would make Orwell blush with that newspeak, especially since it sounds that you would embrace a legislative change that precludes any and all defendant appeals of sentences but allow prosecutors to always appeal sentences.
Meanwhile, prosecutors must be forcing defendants into these deals when the empirical data show that "some defendants appear to receive neither greater certainty nor leniency in return for signing wide-open and unlimited waivers of their rights to review." If prosecutors ever tried to document, openly and clearly, the benefits that they are providing with an appeal waiver in each an every case, I would not think this was a contract of adhesion. But the actual evidence shows otherwise, and prosecutorial policies and practices have made no effort to counteract this evidence. (Eg can you point to a single public document from any one of the 90+ US Attorney offices that provide any clear account of the benefits defendants can expect to get from waiving appeal rights?)
Is it a fair interpretation of your first comment, Bill, that you would be eager to see Congress eliminate all defendant sentencing appeals while preserving all government sentencing appeals? It seems you see some virtue in making sure prosecutors can appeal sentencing judgments they think may be wrong, but it sounds like you see no virtue in allowing individuals to appeal the punishments they get that they might think wrong. Is that what you are saying? Again, Orwell would be proud and impressed if this is how you want law to operate and you call others a big government guy. As I recall, you still have not named a single pro-defendant criminal constitutional ruling that you think is right from a originalist/textualist perspective, so maybe we should just call your views royal. Or Kafka perhaps is the right reference for the opaque and one-sided criminal justice system you seem to think is best. Feel free to embrace whatever accounting of statist power suits you, but do not try to claim those of us concerned about how prosecutors seeking to undermine efforts to check excessive and wrong/illegal punishment are somehow the statists. What's next, advocating for a disinformation bureau at DOJ?
Posted by: Doug B. | May 1, 2022 10:50:12 AM
I've read the opinion and Prof. Hessick's Slate article. One thought I had that I didn't see in either place is the idea that appeal waivers give the defendant one more bargaining chip, and the district judge's policy taking that away is probably bad for defendants overall. The defendant has the right to force the government to go through an appeal, and can bargain away that right in exchange for a shorter sentence. If appeal waivers are categorically not allowed, then--all else equal--it seems like prosecutors will be offering less generous plea deals and defendants will be serving more time in prison.
It seems to me that the main objections to plea bargaining and charge bargaining are inseparable from two propositions: (1) juries aren't good enough at acquitting innocent defendants or (2) defendants who go to trial can reasonably expect excessively long sentences afterward if convicted. If #1 isn't a problem, then plea bargains only affect guilty defendants. If #2 isn't a problem--i.e., if all or most post-trial sentences are what most reasonable observers would call "just," then there's no problem at all with plea bargaining at least from the defense side. Innocent defendants have nothing to fear, and guilty defendants' exposure is limited by the facts of what they actually did. In that (apparently counterfactual) world, prosecutors only no "lopsided" or "unjust" power at all; all their power is in the direction of giving the defendant a break.
And if we're actually in a world where unreliable juries and the prospect of unjustly long sentences give prosecutors undue leverage, when why is an appeal not a bargaining chip *for the defendant* to counterbalance that?
Perhaps this is all hopelessly naive, as criminal law isn't generally my day job, but I'd be interested in reactions.
Posted by: mostly-civil lawyer | May 2, 2022 4:24:24 PM
Doug --
"Wanting the help protect the individual from the power of the state to punish excessively and wrongly/illegally and to be concerned about insulating those punishment choices from judicial review makes me the big government guy, Bill?"
Nope, what makes you a big government guy is that you want to remove from the defendant and his counsel the decision about what's best for him and put it in the hands of a powerful government actor.
"...especially since it sounds that you would embrace a legislative change that precludes any and all defendant appeals of sentences but allow prosecutors to always appeal sentences."
Where did I say I want a legislative change? I'd leave the appeal provisions of the SRA, and extensive law that's grown up around them, where they are now. If the defendant wants to appeal, fine. He doesn't have to agree to a plea deal with the waiver provision in it or any other provision. Go to trial. Thousands do.
"Meanwhile, prosecutors must be forcing defendants into these deals when the empirical data show that "some defendants appear to receive neither greater certainty nor leniency in return for signing wide-open and unlimited waivers of their rights to review."
Ah yes, the old "empirical data." How about putting down the (massively dated) law review articles and GO TO COURT, like I keep encouraging you to do. What you'll see is what's well illustrated in the very case featured in this entry, to wit, that the defendant not only accepts the deal but affirmatively seeks it, because OVERALL IT'S A WIN FOR HIM.
And goodness gracious, how lame it is to assert the "some" defendants appear to get the short end of the stick. What does "some" mean? Ten? Fifty? Five hundred? A thousand? Well that's slim pickins when tens of thousands of defendants sign, and want to sign, these deals every single year and are happy they did.
You just insist on walking past the fact that we have so much bargaining because ALL the actors in the system have concluded it works for them. And ALL emphatically includes defendants and defense lawyers. Do you really think the system would have bargaining at a rate of over 90% if one of its major players was in open revolt?
"[C]an you point to a single public document from any one of the 90+ US Attorney offices that provide any clear account of the benefits defendants can expect to get from waiving appeal rights?"
Can you point to any statute requiring such make-work (while essential work gets whittled down to pay for it)? Can you point to any rule adopted by Janet Reno or Eric Holder or Loretta Lynch or Merrick Garland requiring or even suggesting it? I know it's considered bad form to suggest that defense lawyers do their own thinking about the benefits v. downsides of bargaining, but what can I tell you? In fact, it's one of the main things they do, and most are quite adept at it.
"Is it a fair interpretation of your first comment, Bill, that you would be eager to see Congress eliminate all defendant sentencing appeals while preserving all government sentencing appeals?"
No. As I said above, I would leave the appeal provisions of the SRA where they are.
"Feel free to embrace whatever accounting of statist power suits you, but do not try to claim those of us concerned about how prosecutors seeking to undermine efforts to check excessive and wrong/illegal punishment are somehow the statists. What's next, advocating for a disinformation bureau at DOJ?"
You'd need to check the status of Orwellian government disinformation bureaus with the current administration -- you know, the one you voted for and I opposed.
Posted by: Bill Otis | May 3, 2022 12:03:47 AM
Bill, the latest USSC data show 98.3% of sentences come after pleas and there were less than a thousand trials resulting in guilty verdicts in FY2021. But we have zero data about how many of the 56,000+ pleas were the product of plea deals that included appeal waivers, or what benefits defendants might have received from waiving these statutory rights, or when and how and on what terms prosecutors may be demanding that these terms appear in a plea deal. (To my knowledge, I am not aware of any defendant suggesting to add an appeal waiver to a plea deal, but maybe that does happen. But, lacking data and any transparency, there is no way to know.)
Given that you say that you approve of the SRA providing both prosecutors AND defendants the statutory right to appeal the sentencing process and outcomes, are you troubled by the lack of information about when and how these rights are waived at the request of prosecutors? You are right that we lack recent data or even basic information on how these appeal waiver function and the views of defendants regarding their used. Are you willing to join with me in urging DOJ and/or the US Sentencing Commission (when it has members) to conduct needed research on these important matters?
If you said you favored eliminating the right to sentencing appeals for defendants, then I suppose I could see you embracing any device that cuts back on these appeals no matter how it may function. But since you now endorse the defense appeal provisions of the SRA, and thus see some virtue in having sentencing outcomes subject to appeal, would you also endorse a needed exploration of when and how this right is getting waived? I assume you would be against, say, gender or religion or political views may be playing a direct role in who gets asked to waive appeal rights, but we do not know if that may formally or informally a part of how some federal prosecutors decide to require these waivers in plea agreements. Sunlight is the best disinfectant, and I am eager to know if you will join me in trying to get the sun to shine more in this arena.
I will say at the outset that if we were to find that sentencing appeal rights/waivers really do function reasonably consistently as another sensible bargaining matter for both sides in a knowing and fully-informed plea process, I will be much less concerned about their use (and I think district judges will be likewise less concerned). I am eager to protect individuals from the power of powerful government actor known as the prosecutor, who seem to hold all the power and have no duty to explain how they use the power and are not subject to any real scrutiny or review in the use of this power. But if individuals do not need such protection from prosecutorial power and judges are the problem, I will want to limit judicial power in this context.
But with so little data and no current federal prosecutors making any effort to make the use of these waivers less opaque, we only have old disconcerting research suggesting that many defendants are forced to give up statutory appeal rights without getting any corresponding benefits. Again, if one think these appeal rights serve no good function, that may be of no concern. But you now say you approve of these statutory rights, and so I would hope you would join me in calling for more transparency and research regarding how the waiver of these rights function. Do you?
Posted by: Doug B. | May 3, 2022 10:41:47 AM
Doug --
First things first. Is it not the case that we have a high rate of bargained pleas because, among other things, defense lawyers and defendants want it that way? And they want it that way because bargaining almost always gets them a better outcome than the trial would? And therefore it's simply not the case that bargaining is only a government tool to accomplish government ends?
Isn't all that true?
Isn't it also true that, in addition to transparency concerns, you want more data and more statements of bargaining standards in order to pave the way for more litigation? And that more litigation will increase taxpayer costs and yet further confound finality?
To some of your points:
"Bill, the latest USSC data show 98.3% of sentences come after pleas and there were less than a thousand trials resulting in guilty verdicts in FY2021. But we have zero data about how many of the 56,000+ pleas were the product of plea deals that included appeal waivers, or what benefits defendants might have received from waiving these statutory rights, or when and how and on what terms prosecutors may be demanding that these terms appear in a plea deal."
Plea bargains are written down and are part of the publicly available case files with the court. If you or Moritz or the USSC want to cull through them, that would be a big job, but it's fine by me. But my point is that both the deals, and the files, and the transcripts of the Rule 11 hearings ARE FULLY AVAILABLE RIGHT NOW. The idea that the government is trying to keep it all a secret is just at war with reality. And, as I observed once before, the defense lawyer can put whatever he wants up on Twitter for the world to see.
As a secret cabal, this is pathetic.
"Given that you say that you approve of the SRA providing both prosecutors AND defendants the statutory right to appeal the sentencing process and outcomes, are you troubled by the lack of information about when and how these rights are waived at the request of prosecutors? You are right that we lack recent data or even basic information on how these appeal waiver function and the views of defendants regarding their used. Are you willing to join with me in urging DOJ and/or the US Sentencing Commission (when it has members) to conduct needed research on these important matters?"
I'm not that troubled by the lack of all this info being gathered in one place, because the job of the criminal justice system is to adjudicate cases under law, not satisfy legal research teams. Still, being a mildly curious man, I would support the USSC's trying to gather this data (and the staff can do it without a commissioner quorum, just as the staff has been gathering all sorts of interesting data for years now (some of which you blog about)). I was always happy to talk to the USSC staff. Their problem was not in getting me to provide stories on how things were going in EDVA, but in getting me to stop.
"If you said you favored eliminating the right to sentencing appeals for defendants, then I suppose I could see you embracing any device that cuts back on these appeals no matter how it may function. But since you now endorse the defense appeal provisions of the SRA, and thus see some virtue in having sentencing outcomes subject to appeal, would you also endorse a needed exploration of when and how this right is getting waived?"
I already know why it's getting waived -- I invented the waiver, remember? The reason the government wants waivers is so that it won't have to spend a universe of AUSA time and taxpayer money in what 99% of the time is going to be just spinning the wheel.
Here's one important thing you've been missing: Virtually all these defense sentencing appeals lose. They are not taken because they have merit. They're taken because the defendant has time on his hands, few or no costs to bear, and nothing to lose by trying. On the defense lawyer's side, they get taken because counsel doesn't want the client later complaining to the courts and the bar that he was ineffective or lazy. So the actual deal is this: By waiving the sentencing appeal, the defendant is giving up something that is highly unlikely to do him any good anyway, and gaining something with a big, highly desired, here-and-now benefit -- fewer charges and/or a more lenient sentencing recommendation. Defendants don't sign the waiver because they're fearful of bullied. They sign it because they can do cost/benefit as well as anyone else.
Really, you should get off campus every now and again and see for yourself what happens in real, live courtrooms.
More later!
Posted by: Bill Otis | May 3, 2022 1:13:05 PM
Defendants/defense attorneys definitely plead guilty because they --- rightly in most cases --- expect a much better outcome after a plea than after a trial. But it is quite unclear what terms that go with the plea (beyond just giving up the right to trial) are integral to a better outcome. We do not know whether/how defendants agreeing to an appeal waiver in the plea produces a better outcome than if that waiver was not there. The one (dated) research on this issue found that "some defendants appear to receive neither greater certainty nor leniency in return for signing wide-open and unlimited waivers of their rights to review."
I want more data and transparency on this and related issues because I think data and transparency is essential to effectively judging any government policies and actions. Do you disagree? Are you against having data and transparency about what judges do at sentencing? I am for having data and transparency about what prosecutors do in the plea process that impacts sentencing. Sound like you may not be.
Your final comments lead me to sense you really do think eliminating defendant sentencing appeals would be sound policy since you think all these appeals lack merit and involve "AUSA time and taxpayer money in what 99% of the time is going to be just spinning the wheel." If that is your view, what is your hesitation with advocating for Congress to just eliminate all defendant sentencing appeals (at least in cases in which a defendant has pleaded guilty)? If Congress eliminates the appeal, it is consistent in all cases and the will of the people. But letting this get done by individual prosecutors is inconsistent, opaque and reflects just the will of an unelected bureaucrat.
Notably, the USSC data show that about 15% of sentencing appeals initiated by defendants led to at least a partial reversal, so it seems more than a few sentencing claims on appeal have merit. Though you are right that the vast majority do get rejected on appeal. Too bad we have no data on how often prosecutors seek waivers in plea deals or what their terms are (or how often enforced).
Posted by: Doug B. | May 3, 2022 2:55:17 PM
