Judicial Skepticism Mounts Over the Use and Reach of Appellate Waivers

1. Appellate waivers should only be enforced where the government provides consideration in the plea agreement. In a recent Second Circuit decision, United States v. Lutchman, No. 17-291 (2d Cir. Dec. 6, 2018) (Newman, Jacobs, Pooler), the court exercised appellate jurisdiction over a defendant's challenge to his sentence, notwithstanding the existence of an appellate waiver in the plea agreement. The court held that the appellate waiver was not supported by consideration, and thus did not bar defendant's challenge to his sentence on appeal.

In this case, the defendant promised not to appeal any sentence equal to or below the statutory maximum. The Circuit examined the benefits provided in the plea agreement in exchange for the appeal waiver and concluded that the defendant received nothing in exchange for waiving his right to appeal. Id. at 5. The government promised to agree to a reduction in offense level based on acceptance of responsibility, but this reduction would have been available to the defendant regardless of whether he waived his right to appeal. Id. at 5-6. The court further concluded that the “reductions” in offense level resulting from the plea agreement had no practical effect since the defendant received the statutory maximum. Id. at 6. Nor could the government point to any uncharged counts that could have been proven at a trial. The court severed the appellate waiver from the plea agreement, and considered the defendant's sentencing challenge on the merits. Although the court affirmed on the merits, the decision suggests that courts may be willing to examine whether the terms of the plea agreement meet one of the basic requirements for formation of a contract: consideration.

2. Appellate waivers should only be enforced where they are voluntary. A recent New York state appellate court decision looked at the voluntariness of standard appeal waivers in plea agreements. In practice, New York state prosecutors often demand appeal waivers as a condition of a plea bargain. In a sense, defendants do not “voluntarily” waive their right to appeal in plea agreements but rather are compelled to do so. To be sure, in some cases the defendant receives a benefit in exchange for their appeal waiver, with respect to the sentence or charges, but this is not always the case. The New York Appellate Division, Second Department recently handed down a decision that cautions New York trial judges to take care that criminal defendants voluntarily, knowingly and intelligently waive their right to appeal. See, People v. Batista, 167 A.D.3d 69 (2d Dep't 2018). The focus of the Appellate Division's frustration seems to derive less from the consideration afforded to a criminal defendant entering into a plea, but from deficient plea colloquies that do not ensure defendants understand what is at stake in their plea agreements. Andrew Denney, “NY Appeals Judges Say Trial Courts Should Act to Quell Appeal Waiver Challenges,” New York Law Journal (Nov. 9, 2018). Defendants should understand that they are giving up their appellate right. This is something that must be part of a guilty plea proceeding in federal court. See, Fed. R. Crim. P. 11(b)(1)(N) (“[T]he court must inform the defendant of, and determine that the defendant understands … the terms of any plea-agreement provision waiving the right to appeal or to collaterally attack the sentence.”).

3. Even when the defendant has waived the right to appeal, trial counsel provides ineffective assistance of counsel when he or she fails to follow a client's request to file a notice of appeal. What is a trial counsel to do when a defendant who is sentenced after entering into a plea agreement with an appellate waiver still asks to file a notice of appeal? For many years it has been constitutional law that a lawyer who does not consult with their client about an appeal or file a notice of appeal when requested has provided ineffective assistance of counsel. See, Roe v. Flores-Ortega, 528 U.S. 470, 484 (2000). In the recent decision in Garza v. Idaho, 139 S. Ct. 738 (2019), the Supreme Court extended this rule to cases in which the defendant had waived hisor her right to appeal. The Court explained that even defendants who have an appellate waiver do not necessarily waive all rights to appeal — they only waive those appeals that fall within the scope of the specific waiver. It is more accurate to say that a defendant who waives the right to appeal “simply ha[s] fewer possible claims than some other appellants.” Id. at 748. As the Court explained, “even the broadest appeal waiver does not deprive a defendant of all appellate claims.” Id. at 749-50.

This last point is important to bear in mind. Appellate courts have also held even broad waivers do waive all certain claims to be pressed. In United States v. Burden, 860 F.3d 45 (2d Cir. 2017), the Second Circuit considered a waiver of the right to appeal “any alleged error in connection with the re-sentencing itself.” Id. at 50. The court explained that “[d]espite the apparent breadth of this language,” the waivers did not bar a challenge to the defendants' term of supervised release. Id. at 53. This is because when an appeal waiver is silent as to a specific portion of the defendant's sentence, the Second Circuit has held in the past that the appeal waiver does not foreclose challenges to that aspect of the sentence. See, id. at 54.

4. Even without a conditional plea and with an appellate waiver, a defendant may still appeal a claim that the statute of conviction was unconstitutional. The Supreme Court also made clear that neither the fact of an unconditional guilty plea nor the existence of an appellate waiver bars a defendant from appealing his conviction based on an argument that the statute of conviction violates the Constitution. Class v. United States, 138 S. Ct. 798 (2018) holds that while a guilty plea bars the defendant from appealing certain pre-plea decisions, it does not bar an appeal that challenges the government's power to criminalize the defendant's admitted conduct. The Court rejected the argument that such an appeal is contrary to the prohibition in Rule 11(a)(2) against conditional pleas without the consent of the government and the Court, pointing to language in the advisory committee notes that specifically permits an appeal challenging the constitutionality of the statute. Id. at 806. The Court also turned aside the government's argument that this claim was waived by the appeal waiver in the plea agreement because the plea agreement did not expressly or implicitly cover the type of claim at issue on appeal. Id. at 806-07.

Courts should continue to scrutinize carefully the use of appellate waivers. The right to appeal is an important and valuable constitutional right and defendants should receive something of value for entering into a plea agreement in which they waive their right to appeal. They should also be aware of what is at stake when they are waiving their right to appeal. Defense counsel should file a notice of appeal if there is any doubt about whether the appeal waiver covers the particular type of error that the defendant seeks to challenge. In particular, if courts are prepared to scrutinize the terms of plea agreements, as in Lutchman and Burden, it makes it all the more important that every defendant who wishes to file an appeal is given the opportunity to do so. Finally, defendants who plead guilty but are unable to obtain a conditional plea may still have the right to challenge the constitutionality of the underlying statute of conviction.

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Harry Sandick, a member of Business Crimes Bulletin's Board of Editors, is a partner in the Litigation Department of Patterson Belknap and a member of the firm's White Collar Defense and Investigations team. Danielle Quinn is an Associate in the firm's litigation department.