CA3 just ordered the government to file a response to a petition for rehearing in one of the most closely-watched appeals of the year.

Back in August, a CA3 panel decided US v. Erwin, holding that criminal defendants who violate their appeal waivers void their plea deals. Panel opinion here. The widely read Sentencing Law & Policy blog posted about Erwin here and noted a new law review article discussing Erwin here.

I posted about Erwin here (my all-time second-most-viewed post) and here, observing:

[A]lmost a third of criminal defendants in CA3 are getting sentence reductions for cooperation, like Erwin did. The vast majority of these reductions are the product of plea deals, like Erwin’s was. Now, after Erwin, every one of those reductions is at risk . . . .

Last month, Erwin filed a petition for rehearing en banc. That petition was joined by an amicus for NACDL by David Fine and Peter Goldberger, which includes this striking passage (I’ve omitted the cites):

[T]here are certainly cases in which a defendant might reasonably question whether his plea was entered knowingly and voluntarily or whether an express or implied exception to the waiver might allow him an appeal. But the Panel Opinion makes no distinction between plainly baseless appeals and close-but-ultimately-unsuccessful appeals. As a result, the Panel’s precedent may well cause all but the most risk-insensitive defendants to forego appeals even when they may have valid claims.

Some might see that deterrent effect as beneficial, but there is a reason the Court recognizes that waivers must be entered into knowingly and voluntarily and, even in the strictest appellate waivers, that there must be an implicit exception for miscarriages of justice. Unlike most civil contract actions, cases involving plea agreements implicate constitutional rights and, usually, one party’s liberty. Given the interests at stake, the Court should be sure that any remedy for a breach of an appellate waiver does no more than necessary to restore the parties’ expectation interests in the specific case before the Court lest a punitive remedy chill other, later litigants who might have strong – but not ultimately prevailing – claims that their waivers should not be given effect.

Today, Judge Chagares, on behalf of the en banc court, ordered the government to file a response. Stay tuned.