Plea Agreements and Sentencing Appeal Waivers --
of the Law
- At the outset, it is important to note that the Supreme Court has
repeatedly held that a criminal defendant can elect to waive many important
constitutional and statutory rights during the plea bargaining process.
See United States v. Mezzanatto, 115 S. Ct. 797, 801 (1995);
Tollett v. Henderson, 411 U.S. 258, 267 (1973); Blackledge v.
Allison, 431 U.S. 63, 71 (1977, cert. denied, 116 S. Ct. 548
Consistent with that principle, the courts of appeals have upheld the
validity of a sentencing appeal waiver in a plea agreement. See,
United States v. Allison, 59 F.3d 43, 46 (6th Cir. 1995); United
v. Schmidt, 47 F.3d 188, 190 (7th Cir. 1995); United States v.
38 F.3d 727, 731 (4th Cir. 1994), cert denied, 115 S. Ct. 1957
United States v. Bushert, 997 F.2d 1343, 1350 (11th Cir. 1993),
denied, 115 S. Ct. 652 (1994); United States v.
980 F.2d 582, 583 (9th Cir. 1992), amended, 38 F.3d 394 (1994), cert.
denied, 115 S. Ct. 939 (1995); United States v. Melancon, 972
566, 567-568 (5th Cir. 1992); United States v. Rivera, 971 F.2d 876,
(2d Cir. 1992); United States v. Rutan, 956 F.2d 827, 829-830 (8th
- A sentencing appeal waiver provision does not waive all claims on
appeal. The courts of appeals have held that certain constitutional and
statutory claims survive a sentencing appeal waiver in a plea agreement.
example, a defendant's claim that he or she was denied the effective
of counsel at sentencing, United States v. Attar, supra; that
or she was sentenced on the basis of race, United States v. Jacobson,
F.3d 19 (2d Cir. 1994); or that the sentence exceeded the statutory maximum,
United States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992), will be
reviewed on the merits by a court of appeals despite the existence of a
sentencing appeal waiver in a plea agreement.
- Scope of Sentencing Appeal Waivers
- A plea bargain is a contract between the prosecutor and the
Thus, the scope of a sentencing appeal waiver in a plea bargain will depend
the precise language used in the sentencing appeal waiver provision.
- A broad sentencing appeal waiver requires the defendant to waive
and all sentencing issues on appeal and through collateral attack.
SAMPLE WAIVER PROVISION
- The following waiver provision is an example of a broad approach
may be used in plea agreements:
- The defendant is aware that 18 U.S.C. § 3742 affords a defendant
right to appeal the sentence imposed. Acknowledging all this, the defendant
knowingly waives the right to appeal any sentence within the maximum
the statute(s) of conviction (or the manner in which that sentence was
determined) on the grounds set forth in 18 U.S.C. § 3742 or on any
whatever, in exchange for the concessions made by the United States in this
agreement. The defendant also waives his right to challenge his sentence or
manner in which it was determined in any collateral attack, including but
limited to a motion brought under 28 U.S.C. § 2255.
- The advantage of a broad sentencing appeal waiver is that it will
the appeal of virtually any Sentencing Guideline issue. For example, in
United States v. Johnson, 67 F.3d 200 (9th Cir. 1995), the Ninth
dismissed the defendant's appeal because he had agreed to waive his appeal
plea agreement. The court relied on the broad "any sentence" waiver
the plea agreement to reject the defendant's claim that the waiver did not
encompass appeal of issues arising out of a law enacted in the period
plea and sentencing.
- The disadvantage of the broad sentencing appeal waiver is that it
result in guideline-free sentencing of defendants in guilty plea cases, and
could encourage a lawless district court to impose sentences in violation of
guidelines. It is imperative to guard against the use of waivers of appeal
promote circumvention of the Sentencing Guidelines. All charging decisions
plea agreements are subject to the rules set forth in this chapter. In this
regard it is also important to note that the Sentencing Commission's policy
statements allow judges to accept plea agreements that do not undermine the
statutory purposes of sentencing or the Sentencing Guidelines; the policy
statements also admonish the parties when using stipulations to set forth
relevant facts and circumstances of the actual offense conduct and offender
characteristics and not to include misleading facts. USSG
6B1.4 (Nov. 1994).
- Use of waiver of appeal rights in a manner resulting in sentences
violation of the Sentencing Guidelines could prompt a court of appeals to
reconsider its decision to uphold the validity of a sentencing appeal
Alternatively, the reviewing court could construe a sentencing appeal waiver
narrowly in order to correct an obvious miscarriage of justice. To avoid
concerns, in a case involving an egregiously incorrect sentence, the
should consider electing to disregard the waiver and to argue the merits of
appeal. That would avoid confronting the court of appeals with the
decision of enforcing a sentencing appeal waiver that might result in a
miscarriage of justice.
- A second kind of sentencing appeal waiver is limited in some
most likely with regard to a particular sentence, sentencing range, or
application. For example, a sentencing appeal waiver could preclude appeal
sentences consistent with a recommended sentence, sentencing range, or
guideline application agreed to by the parties. Thus, if the plea agreement
provides that the prosecutor will recommend the lower half of the available
sentences for a particular offense level applicable to the case (subject to
determination of the criminal history category), the plea agreement could
provide for a waiver of the defendant's right to appeal any sentence imposed
within the agreed-upon lower half of the applicable range. Alternatively,
sentencing appeal waiver could be narrowed to apply to a particular
application. For example, if the parties agree that a two-level reduction
acceptance of responsibility applies, the plea agreement could provide for a
waiver of the defendant's right to appeal any sentence on the basis of such
- A variation of the above limited sentencing appeal waiver could be
where the parties do not agree to a particular sentencing or guideline
application. The defendant can, nevertheless, agree not to appeal the
determination of a particular factor. Thus, a waiver of appeal rights could
apply to any determination by the court regarding acceptance of
Or, in a fraud case, where the amount of loss is disputed, the defendant
waive the right to appeal any determination within a specified range.
a waiver could provide that the defendant will not appeal his or her
unless the sentence constitutes an upward departure from the guideline range
deemed applicable by the sentencing court, in which case the defendant's
will be limited to contesting the upward departure.
- The above are just some of the restricted types of waivers that can
constructed in appropriate cases; all of these waivers can extend to
post-conviction rights. The advantage of a limited sentencing appeal waiver
that it is flexible and can be modified to meet the parties' needs. A
sentencing appeal waiver may be useful when the government seeks a plea
agreement, but the defendant is unwilling to plead guilty without some
that he or she will be entitled to appeal an erroneous sentence. The
disadvantage of a limited appeal waiver is that it will not reduce the
sentencing appeals as much as a sentencing appeal waiver that requires the
defendant to relinquish appeal of all sentencing issues.
- Government's Right to Appeal
- The use of a sentencing appeal waiver in a plea agreement to bar an
appeal by the defendant does not require the government to waive its right
appeal an adverse sentencing ruling. The government's retention of its
appeal the sentence while requiring the defendant to waive his or her right
appeal does not violate any right of the defendant. Cf. United
v. Marin, supra (noting existence of "one-sided" sentencing
waiver provisions in plea agreement). However, the Fourth Circuit has held
if the government wishes to retain its right to appeal the sentence while
requiring the defendant to waive his or her right to appeal the sentence,
government must explicitly reserve its right to appeal the sentence in the
agreement. The government's retention of its appeal rights will not be
by silence or omission in the plea agreement. United States v.
941 F.2d 1299 (4th Cir. 1991), cert. denied, 503 U.S. 977 (1992). Of
course, in the interest of striking a bargain, a United States Attorney's
may decide that it is necessary for the government to waive its appeal
when the defendant takes such action. This may be especially appropriate
a negotiated plea reflects the parties' agreement in connection with a
sentence, sentencing range, or guideline application.
- Ensuring that the Waiver is Knowing and Voluntary
- A waiver of an important constitutional or statutory right must be
knowing and voluntary to be valid. See United States v.
Mezzanatto, 115 S. Ct. at 801; Boykin v. Alabama, 395 U.S. 238,
(1969). Therefore, prosecutors should ensure that the record reflects that
defendant knowingly and voluntarily waived his or her right to appeal the
sentence. See, e.g., United States v. Johnson, supra;
United States v. Attar, supra; United States v.
- It is recommended that both the plea agreement and the Rule 11
specifically spell out the sentencing appeal waiver. The plea agreement
expressly state that the defendant understands the meaning and effect of the
agreement and that his or her waiver of rights is knowing and voluntary.
defendant and counsel can be required to sign those provisions separately.
courts of appeals have found sentencing appeal waivers to be knowing and
voluntary solely on the basis of the clear language of the plea agreements.
See United States v. Portillo, 18 F.3d 290 (5th Cir.),
denied, 115 S. Ct. 244 (1994); United States v.
- Nonetheless, relying solely on the text of the plea agreement is
The better practice is for the district court to supplement the plea
by specifically referring the defendant to the sentencing appeal waiver
and obtaining the defendant's express waiver of his or her right to appeal
the Rule 11 hearing. The courts of appeals will readily find a knowing and
intelligent waiver of appeal in those circumstances. See, e.g.,
States v. Marin, supra; United States v. Melancon,
supra. If a district court judge fails to obtain the defendant's
waiver of appeal during the Rule 11 hearing, a reviewing court can remand
case to the district court for that purpose. See United States v.
Stevens, 66 F.3d 431 (2d Cir. 1995).
- Other Concerns
- The general acceptance of the sentencing appeal waiver in the
of appeals has caused criminal defendants to mount systemic challenges to
sentencing appeal waiver. One common and repeated challenge to the
appeal waiver is the argument that a sentencing appeal waiver is involuntary
a matter of law because the defendant will not know his or her actual
at the time that the waiver is executed. That argument has been rejected by
courts of appeals. See United States v. Rutan, supra;
United States v. Navarro-Botello, 912 F.2d 318, 320 (9th Cir. 1990),
cert. denied, 112 S. Ct. 1448 (1992). Rutan reasoned that the
validity of a waiver does not depend on the defendant's knowledge of all of
consequences of the waiver to be valid. When a defendant agrees to plead
he or she does not know whether the government can prove its case and how
witnesses will testify. Nonetheless, those uncertainties do not make the
defendant's waiver of his or her right to contest the government's case
as a matter of law. For that same reason, the defendant's lack of knowledge
his or her actual sentence when the waiver is executed does not make a
appeal waiver unknowing as a matter of law.
- Criminal defendants are also attempting to find language in the
agreement that allegedly authorizes them to appeal sentences despite the
sentencing appeal waiver. For example, some sentencing appeal waiver
contain language that the defendant will be sentenced "in accordance" or "in
conformity" with the Sentencing Guidelines. Although the obvious purpose of
those provisions is to remind the defendant that he or she will be sentenced
under the Sentencing Guidelines, some defendants have argued that the "in
accordance" or "in conformity" language means that the defendant will be
sentenced correctly under the Sentencing Guidelines. Thus, if the district
errs in applying the guidelines to sentence the defendant, the plea
been violated, which nullifies the sentencing appeal waiver. The Ninth
has rejected that argument, reasoning that the defendant's position would
effectively eviscerate the sentencing appeal waiver, which assumes that an
may be committed at sentencing. See United States v.
F.2d 478, 480 (9th Cir. 1991).
- Of course, that problem might be avoided by redrafting the plea
agreement to make clear that although the defendant will be sentenced under
Sentencing Guidelines, he or she will have no right to challenge an
application of the guidelines.
[cited in USAM 9-16.001; USAM 9-16.330]