New York Times Editorial on Appellate Waivers

July 18, 2012 by Marshall A. Mintz · Leave a Comment 

The New York Times printed an editorial discussing the “appellate waiver” provision included in many plea agreements in Federal cases. These provisions state that a defendant will not appeal their sentence if it is within or below the sentencing range estimated at the time of the plea. However, the government often over-estimates the potential sentencing exposure that early in the case. Once the correct sentencing range is determined (which only happens long after the plea is entered), it is not unusual for the waiver provision to preclude an appeal from a sentence much longer than what the defendant ever could have received.

As the Times opined, “Congress gave appeals courts the power to review federal sentences to ensure the government applies the law reasonably and consistently. Without an appeals court’s policing, the odds go up that prosecutors will do neither. Our system of pleas then looks more like a system of railroading.”

Not discussed in that editorial is that these waiver provisions also preclude an appeal when the judge doesn’t follow the law when imposing the sentence. An example can be found in United States v. Bussiereth, where the Second Circuit dismissed the appeal (based on a waiver) even while agreeing that the judge did not comply with the statutory requirements when sentencing Mr. Bussiereth. As the Second Circuit explained: “While Buissereth’s appeal waiver did not relieve the District Court of its responsibility to follow the procedural requirements related to the imposition of a sentence, the appeal waiver does preclude this Court from correcting the errors alleged to have occurred below.”

And that is why these waivers are so dangerous — sentencing someone to prison should not be a casual affair. Rules should be followed and rights must be protected. But these waiver provisions mean that a judge can disregard almost any laws or procedures without consequence so long as the sentence imposed is within the scope of the waiver provision.

And if we allow that, the integrity of our entire criminal justice system should be questioned.

Sentencing Errors Did Not Render Appeal Waiver Unenforceable, But Were Still Errors

March 15, 2011 by Marshall A. Mintz · Leave a Comment 

In United States v. Buissereth, 09-5358-cr (2d Cir. March 15, 2011) – a case in which I represent the appellant – the Second Circuit found that the district court erred by failing to: rule on the defendant’s objections to the Presentence Investigation Report; rule on numerous arguments for departures or a variance; adopt the findings of the Presentence Report in open court; articulate any consideration of the 3553(a) factors; or, calculate the applicable Guidelines range.

While the Court opined that the sentencing hearing “left much to be desired” because an appellate waiver does not relieve a sentencing court of its responsibility to comply with the procedural requirements for sentencing, it ultimately held that the appellate waiver precluded the Court from correcting the errors and dismissed the appeal.

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

July 8, 2010 by Marshall A. Mintz · Leave a Comment 

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.