Category Archives: Appellate Waivers

APPEAL WAIVER PRECLUDES RIGHT TO APPEAL SENTENCE ENHANCEMENT

Published By Stephen Preziosi

U.S. v. Solis

784 Fed. Appx. 202

Fifth Circuit Court of Appeals

Decided on August 9, 2019

Issue:

Whether an appeal waiver is valid when the defendant claims the Government breached the plea agreement where it promised to move for a one-level sentence reduction for conspiracy to transport an undocumented alien if the defendant qualified under U.S.S.G. § 3E1.1(b) for Acceptance of Responsibility, but the district court instead imposed an offense level enhancement because the defendant assaulted a prisoner and was not eligible for the reduction under U.S.S.G. § 3E1.1(b).

Holding:

The Fifth Circuit held that the appeal waiver is valid as the Government did not breach the agreement where they imposed a sentence level enhancement. Solis did not qualify for a sentence reduction under U.S.S.G. § 3E1.1(b) despite Acceptance of Responsibility because he assaulted a prisoner. The plea agreement was knowing and voluntary, and the waiver precludes the defendant’s right to appeal based on the sentencing issue he attempts to raise here.

Fact:

Josue Osvaldo Solis pled guilty to conspiracy to transport an undocumented alien within the US, and was sentenced to 97 months’ imprisonment based on an offense level enhancement.

In Solis’s plea agreement the Government (1) promised to move for the additional one-level reduction under U.S.S.G. § 3E1.1(b) if the district court determined that Solis qualified for the two-level § 3E1.1(a) reduction for acceptance of responsibility and his offense level exceeded the relevant threshold and (2) reserved the right to present facts and argument relevant to sentencing.

The Government presented facts and argument that Solis assaulted “another prisoner,” which resulted in an offense level enhancement, rather than a reduction. Solis appealed, claiming the district court breached the plea agreement.

Analysis:

Appeal Waiver Precludes Appeal of Sentence that Imposed Offense Level Enhancement

The court dismissed Solis’s appeal based on the waiver in his plea agreement and found his sentence was consistent with a reasonable understanding of “the plain language of the agreement.” Solis knowingly and voluntarily agreed to the appeal waiver which precluded his right to appeal except on the basis of ineffective assistance of counsel.

U.S.S.G. § 3E1.1 reads:

  • If the defendant clearly demonstrates acceptance of responsibility for his offense, decrease the offense level by 2 levels.
  • If the defendant qualifies for a decrease under subsection (a), the offense level determined prior to the operation of subsection (a) is level 16 or greater, and upon motion of the government stating that the defendant has assisted authorities in the investigation or prosecution of his own misconduct by timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the government and the court to allocate their resources efficiently, decrease the offense level by 1 additional level.

The Government presented evidence that Solis did not qualify for a § 3E1.1 sentence reduction because he assaulted another prisoner.

The Fifth Circuit was not persuaded by the argument that Solis reasonably understood the language of the agreement to include “an additional promise that the Government would refrain from advocating against his qualification for the two-level § 3E1.1(a) reduction.” The sentencing was consistent with the agreement, therefore the Government did not breach the agreement. The Fifth Circuit dismissed Solis’s appeal.

Breach of Plea Agreement and Appeal Waivers

Published By Stephen Preziosi

U.S. v. Franklin

701 Fed. Appx. 575

Ninth Circuit Court of Appeals

Decided on May 11, 2017

Issue:

Government Breaches Plea Agreement at Sentencing

Whether 1) the Government breached the plea agreement where it agreed to recommend a base offense level of 24, but in sentencing applied a base offense level of 26 while entreating the court to “vary downward” from the total offense level, and 2) whether the government’s breach voids the appeal waiver.

Holding:

Government Breach of Plea Agreement Does Not Void Appeal Waiver

The Court held that 1) although the Government did breach the plea agreement, the breach did not affect the defendant’s substantial rights and did not amount to plain error; therefore, 2) his appeal weaver is enforceable. 

Facts:

Andre Franklin appealed his 60-month sentence following a guilty plea to distributing crack cocaine. Franklin argued that the Government breached the terms of the agreement by not recommending that he receive a base offense level of 24 as specified in the agreement. At sentencing, the Government instead recommended that a base level of 26 was “technically accurate” due to “relevant conduct,” where police seized controlled substances and a gun seven days after Franklin’s offense conviction. The Government entreated the court to “vary downward” from the total offense level of 26 and “impose a sentence consistent with the parties’ plea agreement by applying a base offense level of 24.” 

Analysis:

Government Did Breach Agreement

The Ninth Circuit found that in recommending a base offense level of 26, the Government did breach the plea agreement. However, the defendant did not object at the time of sentencing so the court reviewed the issue under a plain error standard of Fed. R. Crim. P. 52(b).

Plain Error Review

To prove his appeal waiver was invalid due to plain error, the defendant must prove “1) error; 2) that was plain; 3) that affected substantial rights; and 4) that seriously affected the fairness, integrity, or public reputation of the judicial proceedings” (U.S. v Whitney, 673 F.3d 965, 970 (9th Cir. 2012)). The Ninth Circuit found that though the Government contravened the guarantees of the plea agreement by representing that the higher base offense level was correct and recommending that the court vary downward from it, the breach did not affect Franklin’s substantial rights. Franklin himself argued for a base offense level of 26 at the sentencing hearing, and that level actually lowered his sentencing range. The Ninth Circuit held that the Government did not, therefore, affect his sentence in a detrimental way. Because Franklin could not show that the Government’s breach affected his substantial rights, he was bound by his appeal waiver and his appeal is dismissed. 

Appellate Waivers and Immigration Consequences

Published By Stephen Preziosi

U.S. v Ataya

884 F.3d 318

Sixth Circuit Court of Appeals

Decided on March 2, 2018

Issue:

Plea Agreements Must be Knowing and Voluntary

Whether an appeal waiver is valid when the defendant was not informed by the district court of restitution and immigration consequences such as denaturalization under Federal Rule of Criminal Procedure 11(b)(1)(J), (K), (L),  and (O), which requires the court to inform the defendant of immigration consequences before entering his plea agreement.

Holding:

Appeal Waiver Not Valid in Cases of Plain Error

The Sixth Circuit held that because the district court failed to comply with Fed. R. of Crim, P. 11(b)(1)(O) by informing the defendant of immigration consequences, Ataya’s plea was not knowing and voluntary, and therefore his appeal waiver is voided.

Facts:

Ataya pled guilty to conspiracy to commit healthcare and wire fraud. His plea agreement contained a waiver of appeal rights. At his plea hearing, the district court failed to address a number of considerations that are required under Fed. R. of Crim, P. 11(b)(1). First, the court did not inform Ataya that the plea agreement required him to pay $4,119,711.29 in restitution, and second, “neither the plea agreement nor the district court seems to have mentioned” that Ataya might face denaturalization as a result of the conviction. The lower court sentenced Ataya to 97 months’ imprisonment. He appealed on plain error, arguing that he had no notice from any source that his guilty plea might result in denaturalization and, had he known about the consequences under Rule 11, he would not have pled guilty.

Analysis:

Proving Plain Error

In an appeal under plain error, Ataya had the burden to prove that 1) there was an error or defect, some sort of deviation from a legal rule, 2) the legal error was clear or obvious and 3) the error affected the appellant’s substantial rights and the outcome of the district court proceedings.

The Federal Rule of Criminal Procedure 11(b)(1)(O) instructs the district court “to inform the defendant of, and determine that the defendant understands that, if convicted, a defendant who is not a United States citizen may be removed from the United States, denied citizenship, and denied admission to the United States in the future.” Because the lower court did not comply with this rule, Ataya met the first two prongs of plain error review.

The Government argued that Ataya could not meet the third step of the plain error review, that he did not demonstrate he would not have pled guilty but for the district court’s Rule 11 error. However, the Supreme Court has recognized that U.S. citizenship provides “priceless benefits,” and the consequences of denaturalization are “more serious than a taking of one’s property, or the imposition of a fine or penalty.” (Schneiderman v. U.S., 320 U.S. 118, 122, S.Ct. 1333, 87 L.Ed. 1796 (1943). Furthermore, the Supreme Court has repeatedly acknowledged that “preserving [an individual’s] right to remain in the United States may be more important to [that individual] than any potential jail sentence.” (Lee v. United States, U.S. 137, S.Ct. 1958, 1968, 198 L.Ed.2d 476 (2017).

In addition to the severe consequences of denaturalization in general, the Sixth Circuit found sufficient contemporaneous evidence in the record demonstrating a reasonable probability that Ataya in particular would not have pled guilty if he had notice of adverse immigration consequences. At his sentencing, Ataya articulated a strong aversion to his former homeland of Syria, and mentioned relatives who are now displaced due to ongoing civil war. Additionally, Ataya is the father of three children who reside in the U.S., and he is an active parent and the family’s breadwinner. Considering the serious consequences of denaturalization on Ataya and his family, Ataya showed there was a “reasonable probability” that he would not have entered the guilty plea had he known about the Rule 11 (b)(1)(O) implications; therefore he satisfied the third prong of the plain-error review.

The Sixth Circuit held that Ataya’s plea agreement was invalid due to plain error. Therefore the appeal waiver contained within it was unenforceable. The Court reversed the defendant’s conviction and remanded for further proceedings.

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.