• Appeal Waivers: Departures and Variances under the United States Sentencing Guidelines. What’s the difference?

    Published By Stephen Preziosi

    US v Jacobs

    635 F.3d 778

    Fifth Circuit Court of Appeals

    Decided on March 15, 2011

    Issue:

    Appealing Upward Variances in Sentencing

    Whether an appeal waiver is valid when a defendant receives an upward variance at sentencing when he preserved his right to appeal an upward departure from the Sentencing Guidelines.

    Holding:

    Appeal Waiver Valid and Enforceable

    The Court held that an upward variance and an upward departure are not the same, therefore the defendant’s appeal waiver is valid and his appeal dismissed.

    Facts:

    Marcus Jacobs pled guilty to possessing stolen mail in violation of 18 U.S.C. § 1708. In his signed plea agreement, Jacobs waived his right to appeal his sentence but preserved his right to appeal an upward departure from the Sentencing Guidelines.


    Jacobs’ waiver stated that, “The defendant waives the right to appeal the sentence imposed or the manner in which it was determined. The defendant may appeal only a) the sentence imposed above the statutory maximum; or b) an upward departure from the Sentencing Guidelines which had not been requested by the United States as set forth in Title 18 U.S.C. § 3642(b).”

    At sentencing, the district court calculated the advisory Guidelines sentencing range as four to ten months. The Government recommend a sentence of seven months. However, the district court opted to vary upwardly under 18 U.S.C. § 3553(a), citing Jacobs’ extensive criminal history, failure of prior sentences to deter Jacobs from further criminal conduct, and a high risk of recidivism. The court sentenced Jacobs to 36 months in prison.

    Jacob appealed, challenging the reasonableness of a sentence that is 260 percent longer than the high end of the Guidelines Range.

    Analysis:

    ‘Departure’ Distinct From ‘Variance’

    Jacobs’ plea agreement, which was knowing and voluntary, only allows him to appeal an “upward departure.” Departure refers only to non-Guidelines sentences imposed under the framework set out in the Guidelines. The Guidelines set out a three-part framework for the imposition of sentences: the district court 1) calculates the advisory sentencing range; 2) considers the specific offender characteristics and grounds for departure enumerated in the Guidelines; and 3) weighs the applicable factors in 18 U.S.C. § 3553(a) as a whole. A district court cannot impose a departure unless it first notifies the parties, and it must explain its reasons for doing so.

    By contrast, if after completing the Guidelines’ three-step process the district court “imposes a sentence that is outside the guidelines framework, such a sentence is considered a ‘variance.’” The court’s authority to impose a variance is discretionary and stems from 18 U.S.C. § 3553(a).

    The Fifth Circuit held that an upward departure and an upward variance are not the same. The plea agreement applies only to “departures,” which has an ordinary, well-settled meaning in the sentencing context. That meaning does not extend to variances such as the one the district court imposed in this case. Therefore, Jacobs’ appeal waiver is valid and does not authorize him to appeal the upward variance he received at sentencing. His appeal was dismissed.

  • Government Breaches Plea Agreement

    Published By Stephen Preziosi

    U.S. v. Wilson

    841 Fed. Appx. 571

    Fourth Circuit Court of Appeals

    Decided on January 25, 2021

    Unfairly sentenced? Contact an appellate attorney today.

    Issue:

    Did the Government Breach the Plea Agreement?

    Whether the Government breached the plea agreement and is released from its obligations under the plea agreement when at sentence defendant objected to the alleged weight of drugs/narcotics.

    Holding:

    Government Cannot Breach Plea Agreement

    The Fourth Circuit held that the Government cannot unilaterally declare itself released from its plea agreement obligations based on a defendant’s alleged breach; therefore the Government breached the plea agreement when it did not advocate for the downward adjustment at sentencing.

    Facts:

    Calvin Wilson pled guilty to possession and intent to distribute marijuana and heroin. As part of his agreement, the Government agreed to dismiss one other count on which Wilson had been charged and agreed that a three-level downward adjustment was warranted for acceptance of responsibility under § 3E1.1 of the Sentencing Guidelines. The agreement stipulated that the drug quantity attributed to Wilson  for sentencing purposes would be “at least 3 kilograms but less than 10 kilograms of heroin.”

    A probation officer then prepared a pre-sentence investigation report (PSR), which held Wilson accountable for 7.48 kg of heroin, putting Wilson’s base offense level at 32. It also recommended several sentencing enhancements, including a two-level enhancement for obstructing justice which might make any reduction for acceptance of responsibility inappropriate. Without credit for acceptance of responsibility, the PSR identified Wilson’s offense level as 43 with a criminal history score of IV resulting in a sentencing guideline of life imprisonment. Wilson filed written objections to the PSR, namely where the PSR attributed less than .2 kg of heroin to Wilson based on drug sales dating back to 2015. Wilson did not challenge a separate paragraph that attributed to him 7.48 kg of heroin.

    At the sentencing hearing the Government addressed its motion for “relief from certain obligations under its plea agreement” because, in its view, Wilson materially breached the plea agreement when he objected to the drug-weight attribution. Wilson responded that the objection was not to the drug quantity, but to the timeline, as the PSR had his drug sales activity going back to 2015 instead of 2017. The district court never ruled on the Government’s motion for relief from its plea agreement obligation or made the finding that Wilson breached the agreement. When it came time for sentencing, the Government did not advocate for a downward adjustment for acceptance of responsibility. Without the reduction, the court calculated Wilson’s sentencing guideline consistent with the PSR as life imprisonment. Wilson objected, pointing out the Government’s obligations under the plea agreement. The district court sentenced Wilson to 35 years’ imprisonment. Wilson appealed, contending that the Government breached the terms of the plea agreement by failing to advocate for the downward adjustment.

    Analysis:

    Government Does Not Declare Breach, a District Court Does

    The Government’s sole argument on appeal was that it was freed from its obligations under the plea agreement because Wilson breached the agreement first when he objected to drug attribution quantities to which he had stipulated. But the Fourth Circuit held that the Government cannot breach the plea agreement due to a defendant’s alleged breach. (U.S. v. Simmons, 537, F.2d 1260, 1261 (4th Cir. 1976)). Rather, the Government may be relieved of its obligations under a plea agreement only after a hearing and a district court finding that the defendant has breached (See id; see also U.S. v Cudjoe, 534 F.3d 1349, 1354 (10th Cir. 2008)). The district court never ruled on the Government’s motion and made no mention of relieving it of its plea agreement obligations. Therefore, the Government remained bound to honor its acceptance of responsibility stipulation in full. Its conceded failure to do so constituted a breach. Wilson’s sentence was vacated and remanded for resentencing before a different judge.

    Plea agreement breached by the Government? Contact a Federal Appeals Attorney today.

  • 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.