New opinion — violating an appeal waiver voids the plea deal

The Third Circuit just issued what looks to me like a very significant new criminal sentencing ruling: when a defendant violates an appeal waiver, he can be re-sentenced without the deal. Defendants who plead guilty and waive their appeals (i.e. virtually all federal defendants) can still raise miscarriage-of-justice challenges to their sentences, but the cost of losing such a challenge just went way, way up.

In the case decided today, defendant Erwin pled guilty to oxycodone distribution. Under his plea deal, the government agreed to move for a 5-level downward departure for cooperation, while Erwin agreed not to appeal. But Erwin did appeal, arguing that his sentence was a miscarriage of justice because the court calculated the downward departure from his guidelines level instead of his (lower) statutory maximum. CA3 rejected his argument, and granted the government’s argument for resentencing without the downward departure motion. Erwin’s sentence could well go from 188 months to 240 months upon resentencing — ouch.

The case is US v. Erwin. Opinion by Chagares, joined by McKee and Nygaard. Note that McKee was the assigning judge on the panel — interesting to me that he did not keep this one. Arguing counsel were Kentucky attorney Jeffrey Brandt for the defendant and Norman Gross for the government.

There were two other opinions today, I’ll post about them separately.

Edit: some quick further thoughts on the impact of the decision. The opinion at n.10 noted that there were nearly 50 motions to enforce an appellate waiver filed in CA3 in 2013, and concluded “the costs are not trivial.” If the court’s hope is that this holding will dramatically cut federal-court costs, I’m skeptical. Some defendants are still going to violate their appeal waivers, and every time the government invokes Erwin, the upshot will be a full-blown sentencing in front of a new judge: talk about a non-trivial cost. And I’d expect most of them to get higher sentences and then to assert appellate IAC in a 2255 motion. All those additional resentencings and 2255 motions will mean more work for district courts, even if it’s less work for CA3.

Update: I posted further thoughts on Erwin here.