A Chorus Line (Dcdjdrew – Wikipedia – Creative Commons 3.0)

One day, when I fancy this blog a bit more of a Big Deal, maybe I will hand out year-end CA3 awards: Best Opinion, Sexiest Judge Alive, that sorta thing.

If I were doing it this year, my runaway winner for Worst Decision of 2014 would be United States v. Erwin. Regular readers know I’ve posted about Erwin a bunch.

Anyway, today Judge Ambro (joined by Rendell, Greenaway, and Vanaskie) issued an opinion for his dissent from denial of rehearing en banc. The en banc denial was announced last month. Today’s dissent is not on the court’s website, which is a shame, because it’s a good one, what Justice Stewart would have called “a snapper.”

Here’s the heart of it, sans cites:

Here is the novelty: the District Court may now resentence Erwin without the Government reprising its downward-departure motion, potentially increasing his time in prison by over four years. The opinion relies on statements from contract law, but, on closer examination, contract principles faithfully applied call for a different remedy from the one our Court orders. * * * To restore the parties to their pre-breach positions, we need only nullify Erwin’s appeal. To do this, we should not consider Erwin’s arguments, no matter how meritorious.

Rejecting this approach, the panel created the new rule that a “defendant must accept the risk that . . . enforcing the waiver may not be the only consequence” of an appeal. Unlike traditional contract remedies, any consequence that goes beyond enforcing the waiver gives the Government more than it bargained for. Specifically, it bargained for Erwin’s cooperation (which it got) and his waiver of the argument that his sentence was calculated incorrectly. * * * Now the Government gets more than the full benefit of its bargain, namely, an opportunity to sentence Erwin again without an obligation to compensate him for his cooperation.

From the conclusion:

In every one of the thousands of criminal appeals this Court has heard since the first appellate waiver in a plea bargain, we have never before held that an attempt to litigate a waived argument opens the door to a harsher sentence. Yet here we do. This cuts counter to how we have acted, and it goes against the majority of cases in other circuits.

And here, dear reader, is the first-ever mention of this illustrious blog in a CA3 opinion:

The panel provides no sound reason for its new remedy, and I join the growing chorus of commentators who have lamented this decision. See Kevin Bennardo, United
States v. Erwin and the Folly of Intertwined Cooperation and Plea Agreements, 71 Wash. & Lee L. Rev. Online 160 (2014); Alain Leibman, “Third Circuit Holds that Breach of Agreement not to Appeal Justifies Government’s Withdrawal of 5K Motion,” White Collar Defense and Compliance (Sept. 18, 2014), available at http://whitecollarcrime. foxrothschild.com/2014/09/articles/sentencing-1/third-circuit-holds-that-breach-ofagreement-not-to-appeal-justifies-governments-withdrawal-of-5k-motion/ (“Not only did the court get it wrong in terms of appreciating the true nature of the parties’ exchange of commitments, but it did not even apply contracts law correctly.”); Matthew Stiegler, “Divided Court Denies En Banc Rehearing in Erwin Appeal-Waiver Case,” CA3blog (December 31, 2014), available at http://thirdcircuitblog.com/cases/divided-court-deniesen-banc-rehearing-in-erwin-appeal-waiver-case/ (“An ignominious ending to 2014.”); Lathrop B. Nelson, III, “Third Circuit Issues Cautionary Tale for Appellate Waivers,” White Collar Alert (Aug. 24, 2014), available at http://whitecollarblog.mmwr.com/ 2014/08/27/third-circuit-issues-cautionary-tale-for-appellate-waivers/ (“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?”); Hon. Richard George Kopf, “Pigs Get Fed, Hogs Get Slaughtered,” Hercules and the Umpire (Sept. 2, 2014), available at http://herculesandtheumpire.com/2014/09/ 02/pigs-get-fed-hogs-get-slaughered/ (“Contract principles are not intended to be punitive, and more than four years extra in prison appears to be punitive rather than restorative in nature.”); Scott H. Greenfield, “Such a Deal (or Snitches Get Stiches),” Simple Justice (Sept. 8, 2014), available at http://blog.simplejustice.us/2014/09/08/sucha-deal/ (“Nobody would have seen this coming.”).

So on this momentous occasion, I close with three thoughts.

First: I hope the uptick in page-views for my Erwin posts over the past week means that someone in a black robe in the Jim Byrne is hip to how big a disaster Erwin will be.

Second: welcome, new readers.

Third: I’m sad that Douglas Berman’s Sentencing Law & Policy is left out of the blog-chorus, because I bet his post was the one everyone else found.