As we’ve written about before, federal prosecutors generally require a waiver of certain appellate rights in connection with a plea deal. Yesterday, the Third Circuit issued an opinion that explores what happens when a criminal defendant, who has executed an appellate waiver, violates his plea agreement by filing an appeal. The results aren’t pretty and, as will play out on remand, may well backfire on the defendant.
In United States v. Erwin, the defendant entered a plea agreement in which he agreed to plead guilty to a one-count information arising out of an ocycodone distribution ring. As part of the plea agreement, Erwin entered a stipulation that the total Sentencing Guidelines offense level was 39 and a sentence within that guidelines range was reasonable. The plea agreement also provided that Erwin voluntarily waived any appellate rights if the sentence imposed fell within or below an offense level of 39. Erwin also entered a cooperation agreement that provided that if the government determined in its sole discretion that he provided substantial assistance to the government, it would ask the court to grant a downward departure under U.S.S.G. 5K1.1. The cooperation agreement further provided that should Erwin violate either the cooperation or plea agreements, the government would be released from any of its obligations and may prosecute him for any criminal offense. At sentencing, the court found that his offense level was a 39 and his corresponding guidelines range was 262 to 327 months, although the court recognized that his sentence was capped at 240 months because of the statutory maximum for the offense. The government then moved for a five-level departure from the level 39 offense level and, without objection, the court granted the motion, found that the applicable guidelines range was 151 to 188 months, and imposed a sentence of 188 months.
Erwin appealed, although now surely wishes he didn’t. Continue reading
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