As we’ve written about before, federal prosecutors generally require a waiver of certain appellate rights in connection with a plea deal.  Yesterday, the Third Circuit issued an opinion that explores what happens when a criminal defendant, who has executed an appellate waiver, violates his plea agreement by filing an appeal.  The results aren’t pretty and, as will play out on remand, may well backfire on the defendant.

In United States v. Erwin, the defendant entered a plea agreement in which he agreed to plead guilty to a one-count information arising out of an ocycodone distribution ring.  As part of the plea agreement, Erwin entered a stipulation that the total Sentencing Guidelines offense level was 39 and a sentence within that guidelines range was reasonable.  The plea agreement also provided that Erwin voluntarily waived any appellate rights if the sentence imposed fell within or below an offense level of 39.   Erwin also entered a cooperation agreement that provided that if the government determined in its sole discretion that he  provided substantial assistance to the government, it would ask the court to grant a downward departure under U.S.S.G. 5K1.1.  The cooperation agreement further provided that should Erwin violate either the cooperation or plea agreements, the government would be released from any of its obligations and may prosecute him for any criminal offense.  At sentencing, the court found that his offense level was a 39 and his corresponding guidelines range was 262 to 327 months, although the court recognized that his sentence was capped at 240 months because of the statutory maximum for the offense.  The government then moved for a five-level departure from the level 39 offense level and, without objection, the court granted the motion, found that the applicable guidelines range was 151 to 188 months, and imposed a sentence of 188 months.

Erwin appealed, although now surely wishes he didn’t. 

The court did not buy Erwin’s argument that the district court erred in starting from a level 39 before applying the five level downward departure and found that the appeal fell squarely within his appellate waiver.  The court then addressed the government’s proposed remedy:  vacating the sentence and permitting the government to pursue the remedies within the plea agreement, namely, the opportunity to bring additional charges against the defendant or to withdraw its downward departure motion (the latter being the government’s preferred option).  The opinion then takes a turn away from criminal  law and into a discussion of contracts, reciting the “classic rule of contract law” that “a party should be prevented from benefiting from its own breach.”  (As an aside, I was hoping that the Third Circuit would invoke the hairy hand case of Hawkins v. McGee (hat tip to you, Stan Henderson), but alas, it did not).  The court deemed Erwin’s plea agreement “a classic bargained-for exchange,” in which Erwin received the “full benefit” of his bargain and the government, which “devoted valuable resources to litigating an appeal that should never have been filed in the first place,” did not.  The court, shifting to food analogies, asserted that the defendant could not “have his cake and eat it too” and “must take the bitter with the sweet.”  The court then held that the government was entitled to specific performance, which meant de novo resentencing (before a different sentencing judge) in which the government would be relieved of its obligation to seek a downward departure.  The court also rejected a challenge that the government’s request for specific performance was barred by the cross-appeal rule because the government did not file a cross-appeal.

The court’s focus on the government’s unrealized bargain may well have consequences for defendants, who have entered plea agreements and who have legitimate, non-waived appellate issues.  The court cited approvingly the assertion that the defendant’s conduct was part of a “common sequence” of defendants who ignore the appellate waiver provisions within plea agreements and even reported that in 2013 “nearly 50 motions to enforce an appellate waiver were filed within our circuit, the vast majority of which were granted.”

But what about those motions to enforce appellate waivers that were denied?  What about those defendants who have legitimate appellate issues that decline to appeal for fear of a harsher sentence if the court deems the appeal within the scope of their appellate waiver?  To that, the court asserts that a “defendant must accept the risk that, if he does not succeed, enforcing the waiver may not be the only consequence.”   Such a risk may prove too much for some defendants, who may get more than they bargained for.