Waiver of Appeal in Plea Agreements
In recent months there has been renewed interest in the Apprendi "statutory maximum" with regard to federal sentencing. Just when it looked as if federal courts, prosecutors, and defense lawyers were all getting comfortable again with federal sentencing, the Supreme Court issued its holding in United States v. Cunningham. In that case, the Supreme Court reaffirmed its holding in Booker that a judge cannot increase a defendant's sentence based upon facts not admitted or found by a jury.
Plea agreements with the federal government often include a waiver of appeal. In the Northern District of Texas, the typical waiver of appeal reads:
Waiver of right to appeal or otherwise challenge sentence: [Defendant] waives his rights, conferred by 28 U.S.C. § 1291 and 18 U.S.C. § 3742, to appeal from his conviction and sentence. He further waives his right to contest his conviction and sentence in any collateral proceeding, including proceedings under 28 U.S.C. § 2241 and 28 U.S.C. § 2255. [Defendant], however, reserves the rights (a) to bring a direct appeal of (i) a sentence exceeding the statutory maximum punishment, or (ii) an arithmetic error at sentencing, (b) to challenge the voluntariness of his plea of guilty or this waiver, and (c) to bring a claim of ineffective assistance of counsel.
The courts have ruled that a defendant may waive his statutory right to appeal his sentence if the waiver is knowing and voluntary, so this waiver is usually upheld.
With Cunningham's reaffirmed "statutory maximum," however, may a defendant who signed such a waiver complain that a district court's sentence exceeded the "statutory maximum" though the sentence was well within the maximum penalty prescribed by Congress? According to the Fifth Circuit, the answer would be "no."
In the Fifth Circuit case of United States v. Bond, 414 F.3d 542 (2005), Bond pleaded guilty pursuant to the plea agreement that contained an appellate waiver, but argued that he still had a right to appeal his sentence based on the "statutory maximum" language. He reasoned that the Supreme Court's current jurisprudence changed the ordinary definition of "statutory maximum" to the maximum term of incarceration that is authorized by admitted facts or facts found by a jury.
The court ruled that the Supreme Court's "statutory maximum" jurisprudence has a meaning and import that is entirely different from the "statutory maximum" language found in appellate waivers. The court wrote:
We must interpret the plea agreement like a contract, in accord with what the parties intended. There is no indication that they meant for the term "statutory maximum" to be accorded the non-natural definition assumed in Blakely and Booker. In the absence of evidence that the parties to the agreement intended such a specialized, non-natural definition, we apply the term's usual and ordinary meaning, "the upper limits of punishment that Congress has legislatively specified for a violation of a statute.
Consequently, a federal defendant who agrees to an appellate waiver in his plea agreement should expect to have to bear the full amount of imprisonment handed down by the trial court.