District Court’s Refusal to Consider 5k Letter or 3553 Factors at Sentencing Renders Appellate Waiver Unenforceable and Results in Remand to a New Judge
In United States v. Woltman, 10-413-cr (2d Cir. July 6, 2010), the Second Circuit found an appellate waiver contained in a plea agreement unenforceable, vacated the sentence, and remanded the case to a new judge.
Woltman pled guilty pursuant to a plea agreement which included a provision whereby he waived his right to appeal any sentence of 27 months’ imprisonment or less – the top of the advisory Guidelines range estimated in that agreement. Then, after signing that agreement but before sentencing, Woltman cooperated with the government and a 5K1.1 letter was filed. Both sides then urged the district court (Judge Platt) to impose a sentence below the advisory Guidelines range. However, the district court refused to consider the 5K1.1 letter, concluding that the plea agreement controlled, and that, “in urging consideration of the 5K1.1 letter, the parties were improperly attempting to repudiate or modify the Agreement – and repeatedly rebuked them for doing so.”
Basically, “the district court believed that because of the appeal waiver, any sentence at or below 27 months was appropriate, regardless of whether or how the 5K1.1 letter and the 3553(a) factors – if considered – would bear on the sentence.”
The district court sentenced Woltman to 18 months and he appealed. The government then moved to dismiss the appeal based on the appellate waiver.
The Circuit stated that it would “not enforce an appeal waiver where – as here – the sentencing decision was reached in a manner that the plea agreement did not anticipate” or “where the sentencing court failed to enunciate any rationale for the defendant’s sentence, this amounting to an abdication of judicial responsibility.” It then described the refusal to consider the 5K1.1 letter and 3553(a) factors as “an error categorically different from a misapplication of a guideline, or a mistake of law, or a dubious finding of fact.”
The Circuit also took the rarely used step of remanding the case to a different judge, citing the “scorn with which Judge Platt approached the matters pertaining to sentencing,” as well as “Judge Platt’s pattern of errors regarding 5K1.1 letters.”
Why the government would actively seek dismissal based on these facts is a mystery. The inflexible manner in which the government approaches this issue is part of the reason that defense attorneys are so concerned about the inclusion of waiver provisions in plea agreements.