Category Archives: Appeal waivers

GOVERNMENT’S BREACH OF PLEA AGREEMENT VOIDS APPEAL WAIVER

Published By Stephen Preziosi

Plea agreements, Breach of Plea Agreement, Waiver of Right to Appeal

U.S. v. Gonzalez

309 F.3d 882

Fifth Circuit Court of Appeals

Decided on October 14, 2002

Issue:

Plea agreements and sentence enhancements

Whether a defendant’s appeal waiver is enforceable when the Government violated the terms of the plea agreement by using information provided by the defendant in a debriefing to obtain sentence enhancement, where the cooperation agreement pursuant to U.S.S.G. § 1B1.8(a) stated that “any statements made by the defendant in the course of his promised cooperation would not be used against him when determining the applicable guidelines range except as provided by U.S.S.G. § 1B1.8(b).”

Holding:

Appeal waiver not valid after breach of plea agreement

The Fifth Circuit held that the Government breached the plea agreement by using information provided by the defendant against him at sentencing absent any exceptions, therefore voiding the appeal waiver provision of his agreement. The Court vacated the conviction and remanded to district court before another judge.

Facts:

Francisco Gonzalez pled guilty to conspiracy to distribute more than 100 kilograms of marijuana acquired from Mexico and transported for sale in Texas.

Pursuant to his plea agreement, which contained a standard waiver of appeal provision, Gonzalez agreed to cooperate with the Government. In turn, the Government agreed that “pursuant to U.S.S.G. § 1B1.8(a), any statements made by Gonzalez would not be used against him when determining the applicable guidelines range, except as provided in U.S.S.G. § 1B1.8(b).”

A probation officer filed a pre-sentencing report (PSR) indicating that Gonzalez’s sentence should be enhanced by two levels under U.S.S.G. § 3B1.1(c) because he had a leadership role in the offense. If the role enhancement were not applied he would be eligible for a safety valve. Gonzalez filed, under seal, objections to the PSR claiming that he was not the leader, that individuals following behind in a Suburban were the leaders.

Prior to a debriefing session, Gonzalez’s counsel received a proffer letter that stated, “No statements that either you or Mr. Gonzalez make during these discussions can be used as evidence against him in any civil or criminal proceedings except the Government may use such statements for the purpose of cross-examination, impeachment and rebuttal should your client testify at any proceeding contrary to this proffer.”

At the sentencing hearing, prosecution disclosed the information Gonzalez had provided in the debriefing and the lower court determined that fact was “the ultimate admission against interest” because his exclusive knowledge of the Suburban showed “some type of planning or direction” and gave “credence to what everybody else was saying.”

The district court sentenced Gonzalez to 70 months’ imprisonment, assigning an enhancement for his leadership role. He filed a motion for reconsideration, which the district court denied.

Analysis:

Preponderance of Evidence Standard

In determining whether the Government violated the terms of the plea agreement, Gonzalez must prove that the underlying facts establish a breach by a preponderance of evidence. The Fifth Circuit Court of Appeals “must determine whether the government’s conduct is consistent with the parties’ reasonable understanding of the agreement” (US v Wilder, 15 F.3d 1292, 1301 (5th Cir.1994)). The Fifth Circuit held that, “a plain reading of the proffer letter indicates that the parties’ reasonable understanding” would prohibit the Government’s use of the information Gonzalez provided in his debriefing against him, absent any exceptions.

Breach of Plea Agreement Voids Appellate Waiver

Pursuant to U.S.S.G § 1B1.8(a), which states that, “Where a defendant agrees to cooperate with the government by providing information concerning unlawful activities of others, and as part of that cooperation agreement the government agrees that self-incriminating information provided pursuant to the agreement will not be used against the defendant, then such information shall not be used in determining the applicable guideline range, except to the extent provided in the agreement,” Gonzalez’s statements during the debriefing should only have been disclosed (1) if one of U.S.S.G. § 1B1.8(b) exceptions applied; or (2) for the purpose of cross-examination, impeachment, or rebuttal if Gonzalez testified contrary to the proffer at any proceeding.

U.S.S.G. § 1B1.8(b) reads:

(b) The provisions of subsection (a) shall not be applied to restrict the use of information:

  1. known to the government prior to entering into the cooperation agreement;
  2. concerning the existence of prior convictions and sentences in determining §4A1.1 (Criminal History Category) and § 4B1.1 (Career Offender);
  3. in a prosecution for perjury or giving a false statement
  4. in the even there is a breach of the cooperation agreement by the defendant; or
  5. in determining whether, to what extents downward departure from the guidelines is warranted pursuant to a government motion under § 5K1.1 (Substantial Assistance to Authorities)

The Government never argued that any exceptions listed in § 1B1.8(b) did apply, nor did it argue that it was using the information as allowed in the proffer letter. Rather, the Government asserted that the information concerning the Suburban had been disclosed earlier by Gonzalez in his objection to the PSR and was no longer privileged, and that according to U.S.S.G. 1B1.8, the information could be disclosed but not “used against” the defendant. According to case law, the Government was not allowed to use the information against Gonzalez unless it could prove that the information came from a wholly independent source (US v Taylor, 277 F.3d 726, 727 (5th Cir. 2001)). The Government’s disclosure that no one else but Gonzalez knew about the Suburban proves they did not obtain the information from an independent source and were therefore prohibited from using it against Gonzalez.

The Fifth Circuit holds that § 1B1.8 does not prohibit disclosure of information provided in a plea agreement at sentencing, but it does prohibit this information from being used to determine the applicable guideline range (US v Taylor, 277 F.3d at 724), as it was used in this case. The Fifth Circuit Court of Appeals held that the Government breached the plea agreement, and therefore vacated Gonzalez’s conviction and sentence and remanded the matter to the district court.

PLEA AGREEMENTS AND APPEAL WAIVERS: VOIDABLE OR ENFORCEABLE.

Published By Stephen Preziosi

U.S. v. Riggi

649 F.3d 143

Second Circuit Court of Appeals

Decided on Aug. 10, 2011

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Appeal Waivers in Plea Agreements

Issue:

Whether a waiver of the right to appeal in a plea agreement is enforceable when the sentencing court applied the 2008 Sentencing Guidelines and the conviction, a murder conspiracy, ended in 1989 where the 2008  Guidelines contain a significant enhancement, creating a Constitutional Ex Post Facto issue

Holding:

The Court held that waivers of the right to appeal are presumptively enforceable, even when the Ex Post Facto Clause is implicated, as the defendant knowingly waived his right to appeal in the plea agreement where he expressly agreed that the 2008 Guidelines would be used to calculate the offense level and that the plea agreement was binding even if the court used a different Guidelines range.  

Facts:

Defendant Philip Abramo pled guilty to conspiracy to commit murder, conspiracy to commit loansharking and receiving proceeds of extortion in a plea agreement that contained a broad appeal-waiver provision for any sentence eighteen years or less. Abramo was sentenced to 186 months’ imprisonment.

Though the charged murder conspiracy ended in 1989 upon the death of the targeted victim, the 2008 Sentencing Manual Guidelines were applied to determine Abramo’s sentence. He appealed, arguing the application of the 2008 Guidelines violated his ex post facto rights. He invoked contract principles, classifying the Guidelines stipulations as a mutual mistake of fact that rendered his appeal-waiver unenforceable.

Analysis:

General Principles of Appellate Waivers

Waivers of the right to appeal a sentence are presumptively enforceable.  The Second Circuit has repeatedly upheld the validity of appeal waivers if they are knowingly, voluntarily and competently provided by the defendant.  Plea agreements are construed according to contract law principles, but because the plea agreements are unique contracts, the application of ordinary contract principles are tempered with special due process concerns for fairness and the adequacy of procedural safeguards. 

Appellate Waivers: When Are They Voidable

Appeal waivers are voidable when a defendant’s fundamental rights are violated. The Court has voided appeal waivers where the sentence imposed was based on unconstitutional factors such as race (see Gomez-Perez, 215 F.3d at 319), naturalized status (see U.S. v. Jacobson, 15 F.3d 19, 23 (2d Cir.1994), or ability to pay restitution (see U.S. v. Johnson 347 F.3d 412, 415, 419 (2d Cir.2003). Additionally, The Court has voided waivers when a sentencing court “failed to enunciate any rationale for the defendant’s sentence” and thus abdicated its judicial responsibility (U.S. v. Woltmann, 610 F.3d 37, 39-40 (2d Cir.2010).

Appellate Waivers: When Are They Enforceable

The Court upholds the validity of appeal waivers if they are “knowingly, voluntarily, and competently provided by the defendant” (U.S. v. Gomez-Perez 215, F.3d 315, 318 (2d Cir. 2000), and maintains that “other meaningful errors” are insufficient to void a waiver. The Court has enforced appeal waivers where a sentence was arguably imposed contrary to a statutory requirement (see Yemitan 70 F.3d at 748). The Court determines that a defendant who enters a plea agreement “simultaneously waives several constitutional rights” (U.S. v. Waters, 23 F.3d 29, 36 (2d Cir.1994).

Decisive Considerations: Voidable versus Enforceable

The Second Circuit held that in determining whether a waiver of appellate rights will be voided or enforced the decisive considerations are the nature of the right at issue and whether the sentence was reached in a manner that the plea agreement did not anticipate.  Regarding the nature of the right, a defendant can waive fundamental constitutional and statutory rights.

Constitutional Concerns Regarding the Ex Post Facto Clause

In U.S. v. Rosa, (123 F.3d 94 (2d Cir.1997), the Court held that they will set aside the waiver and accept appeal when constitutional concerns are implicated. In Rosa, the parties did not stipulate to a sentence below which the defendant would not appeal, thus the agreement “may have subjected a defendant to a sentence vastly greater than he, or possibly even the Government, could have anticipated” (Id.) Notwithstanding the Rosa case’s “disturbing characteristics,” the Court enforced the appeal waiver.

In this case, however, Abramo’s plea agreement stipulated (1) that the 2008 Guidelines be used; (2) that the applicable Guidelines sentence was eighteen years’ and (3) that the agreement was binding even if the court used a different Guidelines range.

Ignorance of Existing Constitutional Rights as Grounds for Voidable Appeal Waiver

The Court has hinted that ignorance of existing rights may void a plea agreement and a waiver of appellate rights when a “defendant can establish that he was unaware of his Apprendi rights at the time he entered into his plea agreement” (U.S. v. Morgan 386 F.3d 376, 381 n. 3 (2d Cir.2004). Abramo claims the Guidelines error in this case rose from his ignorance of existing constitutional rights, but the Court determines that claim would be relevant only to a claim of ineffective-assistance regarding the advice Abramo received from counsel, as it was his lawyer’s obligation to inform the client of his constitutional rights. But Abramo is not raising an ineffective-assistance claim here.

Furthermore, the Court determines that even if Abramo was unaware of the ex post facto issue when he pled guilty, he was well aware of it by the time of sentencing and he made no motion to withdraw his plea and took no step to preserve the issue for appeal. The Court holds that the plea waiver is enforceable, and Abramo’s appeal is denied.