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De Novo Re-sentencing: Appealing When You Have Waived The Right To Appeal As Part Of A Plea Bargain May Subject You To De Novo Re-sentencing (You Can Lose Your § 5K1.1 Letter)


criminal appeals lawyer, de novo resentencing, breach of plea agreement, waiver right to appeal, specific performance

U.S v. Erwin

United States Court of Appeals for the Third Circuit

2014 WL 4194129

Decided on: August 26, 2014

Defendant’s Appeal In Violation Of Plea Agreement Subjects Him To Specific Performance Of The Original Terms Of The Executed Plea Agreement

Blog By: Stephen N. Preziosi Esq., Criminal Appeals Lawyer

Issue: Whether a Defendant who entered into a plea agreement, violated that agreement by appealing his sentence and thereby subjected himself to de novo resentencing on remand.

Summary: Defendant pleaded guilty to conspiracy to distribute and possess with intent to distribute Oxycodone. His agreement included a waiver of right to appeal his sentence if it was within or below the advisory United States Sentencing Guidelines range that results from a total advisory offense level of 39.

At Defendant’s sentencing hearing, the District Court agreed with the parties and the Presentence Investigation Report (PSR) report that 1) Defendant’s base offense level based on the quantity of Oxycodone attributable to him was 38; 2) Defendant was subject to a four-level enhancement for his leadership role in the conspiracy; and 3) Defendant qualified for a three-level downward adjustment for his acceptance of responsibility.

Defendant appealed to the Third Circuit Court of Appeals and the Court vacated Defendant’s sentence and remanded for de novo resentencing before a different Judge.

See Also: De Novo Review And Clear Error Review Of Fourth Amendment Search And Seizure Issues: Mixed Question Of Law And Fact

Holding: The Third Circuit Court of Appeals held that the Defendant breached his plea agreement when he appealed after knowingly and voluntarily agreed to the terms of the plea-agreement provision waiving the right to appeal the sentence. Court of Appeals vacated the sentence and remanded for de novo resentencing.

An Appellate waiver must be enforced unless the Court identifies the unusual circumstance of an error amounting to a miscarriage of justice in his sentence.

This determination depends on factors such as: the clarity of the error, its gravity, its character, the impact of the error on the Defendant, the impact of correcting the error on the government, and the extent to which the Defendant acquiesced in the result. The validity and scope of an Appellate waiver involves a question of law and is, therefore, reviewed de novo.

The Court of Appeals held that when the Government requested specific performance to the Defendant’s breach of the plea agreement, they requested that he be sentenced to the original terms of the executed plea agreement.

The cross-appeal rule provides that a party aggrieved by a decision of the District Court must file an appeal in order to receive relief from the decision. The Third Circuit concluded that the cross-appeal rule did not apply because the District Court’s sentencing pursuant to the plea agreement gave the Government substantially what it had asked for and did not bar the Government from seeking de novo resentencing. A party who receives all that he has sought is not aggrieved by the judgment and therefore cannot appeal from it.

Facts: Defendant Christopher Erwin pleaded guilty to conspiracy to distribute and possess with intent to distribute Oxycodone. Erwin’s offense level under the advisory United States Sentencing Guidelines (U.S.S.G) 1) based on the quantity of Oxycodone for which he was responsible, was 38; 2) Defendant was subject to a four-level enhancement for his leadership role in the conspiracy; and 3) Defendant qualified for a three-level downward adjustment for acceptance of responsibility. In sum, the parties agreed to a base-level offense of 39.

Erwin’s agreement included a waiver of right to appeal his sentence if it was within or below the advisory U.S.S.G’s range that results from a total advisory United States Sentencing Guidelines offense level of 39, 262 to 327 months. At Defendant’s sentencing hearing, the District Court agreed with the parties and the Presentence Investigation Report (PSR) report that 1) Defendant’s base offense level based on the quantity of Oxycodone attributable to him was 38; 2) Defendant was subject to a four-level enhancement for his leadership role in the conspiracy; and 3) Defendant qualified for a three-level downward adjustment for his acceptance of responsibility.

The Government moved for a five-level downward departure pursuant to U.S.S.G § 5K1.1 requesting a departure from offense level 39 to offense level 34. Defendant did not object and the court granted the Government’s motion. The Defendant’s final Guideline’s range was 151 to 188 months of imprisonment and the District Court imposed a sentence of 188 months and three years of supervised release.

Defendant appealed to the Court of Appeals for the Third Circuit arguing that the District Court’s use of offense level 39 as a starting part for the downward departure was error because, when combined with criminal history category I, offense level 39 yields an advisory Guidelines range above the statutory maximum. The Government did not cross-appeal. The Court of Appeals vacated Defendant’s judgment of sentence and remanded to the District Court for de novo resentencing before a different Judge.

Legal Analysis: The Court of Appeals for the Third Circuit held that the validity and scope of an Appellate waiver involves a question of law and is, therefore, reviewed de novo, United States v. Wilson, 707 F.3d 412, 414 3d Cir.2013.

The Court of Appeals held that before accepting a Defendant’s guilty plea, the District Court must inform the Defendant of, and determine that he understands the terms of any plea-agreement provision waiving the right to appeal or to collaterally attack the sentence. This determination depends on factors such as: the clarity of the error, its gravity, its character, the impact of the error on the Defendant, the impact of correcting the error on the Government, and the extent to which the Defendant agreed in the result.

In this case, the Defendant argues that, because the statutory maximum of 240 months is less than the minimum of the Guidelines range resulting from offense level 39 and criminal history category I, 262 to 327 months, the District Court should have departed downward from 240 months—which, when combined with his criminal category history, roughly equates to offense level 38. Defendant adds that if the District Court had departed from offense level 38 to offense level 33, instead of from 39 to 34, his final Guidelines range would have been 135 to 168 months instead of 151 to 188 months of imprisonment.

Defendant argues that the District Court’s failure to depart to offense level 33 deprived him of his Due Process rights to receive the full benefit of his bargain with the Government. The Court of Appeals held in this case, the Government agreed to move the sentencing Judge pursuant to U.S.S.G § 5K1.1 to depart from the otherwise applicable Guidelines range if it determined in its sole discretion that Defendant provided substantial assistance. The Court of Appeals held that the Defendant’s sentence did not exceed the 240-month maximum sentence prescribed by statute, let alone the higher advisory Guidelines range or 262 to 372 months. The Court concluded that, under these circumstances, enforcing Defendant’s waiver would work a miscarriage of justice and the appellate waiver therefore barred his appeal.

In circumstances where a Defendant’s arguments on appeal are based on a valid appellate waiver, the Court held that their ordinary procedure is to enforce the waiver by dismissing the Defendant’s appeal, thereby affirming the Defendant’s sentence, United States v. Stabile, 633 F.3d 219, 248 3d.Cir.2011. The Government in this case, asked the Court of Appeals to vacate the Defendant’s sentence so that they can pursue the remedies specified in the breach provision of the plea agreement—that is, the opportunity to bring additional criminal charges against Defendant or to withdraw its §5K1.1 motion. The Court of Appeals for the Third Circuit held that they have long exercised de novo review over the question of whether a Government breach has occurred, United States v. Warren, 642 F.3d 182, 187 n.6 3d Cir.2004.

Here, Defendant agreed to plead guilty and to assist the Government in obtaining guilty pleas from his codefendants. He relinquished his right to appeal most aspects of his sentence. In return, the Government promised not to initiate additional criminal charges against him for his role in the conspiracy, and agreed to seek a § 5K1.1 departure if Defendant cooperated.

Defendant purposely exchanged the right to appeal for items that were, to him, of equal or greater value. Having reaped the benefits of his plea agreement, he cannot avoid its principal detriment—to put it colloquially, he cannot ‘have his cake and eat it too’. Under basic principles of contract law, Defendants must take the bitter with the sweet, United States v. Cianci, 154 F.3d 106, 110 3d Cir.1998. Under the law of this Circuit, a Defendant cannot renege on his agreement.

The Court of Appeals held that when the Government breaches a plea agreement, the general rule is to remand the case to the District Court for a determination whether to grant specific performance or to allow withdrawal of the plea, United States v. Nolan-Cooper, 155 F.3d 221, 241 3d Cir. 1998.

The Court held that when the Government requests specific performance at the hands of a Defendant’s breach of the plea agreement, resentencing under the terms of the executed a plea agreement might be the only appropriate remedy. The breach provision in this case permits the Government to withdraw its motion for a downward departure. Accordingly, The Court of Appeals for the Third Circuit held that in this case, they will vacate the Defendant’s judgment of sentence and remand to the District Court for de novo resentencing before a different Judge.


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