Opinion
No. Cr-01-0430 CRB
December 5, 2001
ORDER RE: REJECTION OF PLEA AGREEMENT
In this matter the parties have submitted a plea agreement to the Court pursuant to Federal Rule of Criminal Procedure 11(e)(1)(B). This agreement requires that the defendant waive any right he may have to appeal a yet-to-be imposed sentence, even if that sentence is illegal. However, should the Court, in the government's view, impose a sentence that does not conform to the sentencing guidelines, the government may pursue its appellate rights. The Court hereby advises the parties that it will not accept an agreement such as the one before it, which calls for the unilateral abridgement of a defendant's Due Process rights.
DISCUSSION
The responsibility for review and decision to accept or reject a plea agreement rests with the Court. See U.S.S.G. § 6B. For example, the Court may accept or reject an agreement that moves for dismissal of other charges, or an agreement that a specific sentence is the appropriate disposition of the case. See Fed.R.Crim.P. 11(e)(1)(A) and (C). Additionally, if the Court believes certain stipulated terms of the plea agreement are inappropriate, it can reject the agreement in its entirety. U.S.S.G. § 6B1.4(d); Fed.R.Crim.P. 11(e)(4). Thus, the question before the Court in this matter is whether in the Court's discretion the defendant's waiver of judicial review of his sentence justifies rejection of the agreement.
It is clear that a wavier of appeal regarding sentence is acceptable within limits. See United States v. Nguyen, 235 F.3d 1179, 1182 (9th Cir. 2000). Like any waiver, it must be made voluntarily and knowingly. See id. However, it cannot be unconditional. For example, a defendant could still appeal from a sentence that is beyond the statutory maximum or reflects the use of a prohibited factor, such as race. See United States v. Baramdyka, 95 F.3d 840, 843 (9th Cir. 1996) (recognizing "that the waiver of the right to appeal may be subject to certain exceptions such as claims involving breach of the plea agreement, racial disparity in sentencing among co-defendants or an illegal sentence imposed in excess of the maximum statutory penalty").
Here, the parties have proposed a waiver of an unknown error, that is, one which has yet to occur. While the waiver would not be effective if it is of constitutional proportions or outside the statutory maximum sentence, the present proposed waiver purports to be effective even if the sentence is otherwise erroneous and involves a misapplication of the sentencing guidelines.
As we have learned since the enactment of these guidelines, their application in any given situation can be a complicated exercise. Not only are there areas of the guidelines that are exceedingly complex, for example, the definition of relevant conduct, the very method by which sentencing factors are determined is evolving. Recent Ninth Circuit cases have suggested changes in the appropriate standard of proof to be applied by the district court to sentencing factors. Thus, error is a distinct possibility. In fact, according to the United States Sentencing Commission's annual report for the year 2000, 60 percent of criminal appeals involve issues relating to the application of the sentencing guidelines. The mechanism for correcting error and bringing about uniformity in sentencing, namely, judicial review, is, of course, the subject of the waiver in this particular agreement.
In the Court's opinion, a waiver of appellate rights cannot be justified on the basis that the sentence imposed falls within the maximum possible penalty which was stated to the defendant at the time of the plea. See Fed.R.Crim.P. 11(c)(1). Indeed, it is the unusual case that calls for the imposition of the statutory maximum sentence. It is far more likely that the defendant at the time of the entry of his plea is fairly contemplating a sentence range in accordance with his and the government's view of the known sentencing factors, and one which does not reflect judicial error. The question of the "voluntariness" of the waiver of appellate rights in this proposed plea agreement would thus involve inquiring into whether the defendant would plead guilty if he believed that the Court might impose a legally erroneous sentence from which no appeal can be obtained.
The Court recognizes that proper enforcement of appeal waivers can serve an important function to the judicial process by preserving finality of judgment and sentences imposed pursuant to a valid plea agreement. See Baramdyka, 85 F.3d at 843. But this begs the question. Finality, while by definition an end to the process, does not bespeak of the justice of the result. While an appellate waiver may reduce frivolous appeals, it also eliminates meritorious claims.
It is not difficult to understand how a defendant's claim of sentencing error may have merit. Factors such as the appropriate criminal history category, the scope of relevant conduct, the amount of loss or the quantity of contraband, and the role in the offense are frequently contested. The outcome of these disputed issues may turn on the quality of proof as well as the manner in which this relevant information is presented to the sentencing court. U.S.S.G. § 6A1.3. It may also turn on the sentencing court's resolution of legal issues, such as the standard of review to apply, what constitutes a "loss," or other similar sentencing guideline issues, legal issues which are traditionally reviewed — and ultimately resolved — by appellate courts.
If this proposed plea agreement is accepted, no such review would be permitted provided that the defendant's sentence is not greater than the statutory maximum of 36 months, notwithstanding the fact that the parties clearly contemplate a sentencing range of 8 to 14 months with the possibility of a split sentence. See U.S.S.G. § 5C1.1(d)(2); Plea Agreement ¶ 7. Would the defendant plead guilty if he knew he could receive a non-appealable sentence that was three to eight times more severe than he and the government believed is justified under the sentencing guidelines?
In light of the uncertainties set forth above, and in view of the requirement that a waiver to be effective must be "knowing" and "voluntary," the Court believes that a defendant at the time of plea must fairly contemplate the actual, not theoretical, range of sentence that may be imposed. Thus, a plea agreement containing a waiver of judicial review, should, at the very least, set forth a maximum sentence which the defendant would accept based upon certain assumptions as they relate to sentencing factors, including criminal history. If these assumptions are incorrect, or to put it less felicitously, if the court finds otherwise and in doing so is mistaken, then a defendant should be permitted to pursue an appeal.
Thus, the Court would accept a plea agreement containing a limited waiver of appellate rights — the limitation being within the fair contemplation of both parties as to a reasonable application of the sentencing guidelines to the particular defendant and his conduct at issue. The standard language of a waiver of appeal in the plea agreement could state as follows:
In exchange for the government's concessions in this plea agreement, defendant waives, to the full extent of the law, any right to appeal or collaterally attack the conviction and sentence, including any restitution order, unless the Court imposes a sentence in excess of ___ months. If the custodial sentence exceeds ___ months, the defendant may appeal, but the government will be free to support on appeal the sentence actually imposed.
Simply stated, every plea agreement containing a waiver of judicial review should set forth the maximum sentence which a defendant would accept.
It is readily apparent that this procedure does not eliminate the possibility of judicial error. Rather, it provides for judicial review of a potential error when the sentence is different from that which was reasonably contemplated by both parties at the time of the plea. To that end, errors which have a disproportionate effect in sentencing would be corrected thereby permitting defendants to obtain a sentence that is governed by a correct application of the guidelines. It does not allow the parties to choose a sentence; rather it permits sentencing that, if outside a defendant's expectations, will still have to be legally correct.
CONCLUSION
For the foregoing reasons, the Court rejects the proposed plea agreement.
IT IS SO ORDERED.