Often as criminal defense attorneys we feel like the lone voice calling out against what we perceive to be cases of injustice. But yesterday Third Circuit Judge Ambro – joined by Judges Rendell, Greenaway, and Vanaskie – gave a nod to White Collar Alert and joined in the choir “lament[ing]” the panel decision in United States v. Erwin.

As we previously noted, in August 2014 the Erwin panel issued a controversial opinion regarding a defendant’s decision to appeal an issue that he knowingly and voluntarily waived in his executed plea agreement. They held that raising such an issue is a direct breach of one’s plea agreement “and that the appropriate remedy for [this] breach is specific performance of the agreement’s terms.” In Erwin’s case, that meant that the Government was “excused from its obligation to move for a downward departure.” The Court therefore vacated Erwin’s judgment of sentence and remanded for de novo resentencing, subjecting Erwin to the possibility of up to four additional years of imprisonment.

At the close of 2014, the Third Circuit – over the dissent of Ambro, Rendell, Greenaway, and Vanaskie – issued an order denying Erwin’s petition for rehearing en banc. Then yesterday, an amended order was filed which included a 5-page “Opinion Sur Rehearing,” strongly laying out the grounds for the Judges’ earlier dissent. The decision notes, inter alia, that traditionally “[w]hen a civil litigant, the Government as prosecutor, or a criminal defendant waives an argument, the remedy is to enforce the waiver by not considering the argument, even if it has merit.” Here, however, the panel’s decision “created the new rule that a ‘defendant must accept the risk that . . . enforcing the waiver may not be the only consequence’ of an appeal”: their “attempt to litigate a waived argument [may] open[] the door to a harsher sentence.”

And that’s where White Collar Alert comes in. Judge Ambro noted that “the panel provides no reason for its new remedy, and [therefore he] join[s] the growing chorus of commentators who have lamented this decision.” He cited, among others, my colleague Lathrop Nelson’s concern previously raised on White Collar Alert that the Erwin decision will serve as a huge deterrent for defendants who have legitimate appellate issues. Given this likelihood, and because, as Judge Ambro declared, the opinion runs “counter to how [the Court] ha[s] acted, and … goes against the majority of cases in other circuits,” let’s hope defense counsel promptly files a petition for certiorari.