Waiver of the right to appeal sentencing in plea agreements with the federal government.

• Author: Carney, David E.

During the summer of 1997, the Department of Justice issued a directive requiring all future federal plea agreements to include language providing that a defendant waive her statutory right to appeal the sentence imposed by a judge(1) guaranteed by the Sentencing Reform Act of 1984 (the "Act").(2) Various agreements in several federal jurisdictions previously had used similar waiver language on an ad hoc basis.(3) Twice during the summer of 1997, the issue arose in the U.S. District Court for the District of Columbia.(4) Although several circuits have deemed the waiver acceptable,(5) Judges Paul L. Friedman and Harold H. Greene ruled in separate hearings that the U.S. Attorney's office could not include such a condition in any plea agreement.(6) Though the U.S. Attorney's office subsequently withdrew the language and proceeded contrary to the Department of Justice directive,(7) many other jurisdictions not bound by the District of Columbia ruling continue to use waiver language as a precondition to any plea agreement.

This Note discusses the validity of plea agreement provisions that require the defendant to waive the right to appeal sentencing as a condition to making a plea agreement. The first section offers a brief historical review of the right to appeal sentencing, the Department of Justice directive, the Judicial Conference's consideration of the topic, and the specific history of the current controversy over waiver provisions. The second section examines legal issues, as reflected in cases and statutes. The third section investigates public policy considerations favoring and opposing enforcement of the waiver. In the fourth section, this Note presents another scholarly treatment of this issue, and concludes that the proposed alternative is deficient. The fifth section presents another alternative that relies upon Federal Rule of Criminal Procedure 11(e)(1)(C). This Note's proposed alternative complies with the legal and public policy considerations that forced a rejection of both the Department of Justice directive and the previous scholarly treatment of the issue. Finally, this Note concludes that the government should use Rule 11(e)(1)(C) to effectuate a plea in which a defendant sacrifices her right to appeal, rather than requiring each plea agreement to include a waiver of such right.

HISTORY OF THE RIGHT TO APPEAL SENTENCING AND OF THE PRESENT CONTROVERSY

Prior to November 1, 1987,(8) federal judges had nearly complete discretion in the imposition of sentences.(9) The criminal defendant did not possess the right to appeal sentencing except through a habeas corpus action or in other limited circumstances.(10) Habeas actions, however, were, and still are, limited procedurally, essentially to prevent defendants from having multiple opportunities to appeal.(11) The government also possessed limited appellate rights regarding sentencing.(12)

Members of Congress found this state of affairs unacceptable because it provided unfettered and unjustifiable judicial discretion.(13) Congress therefore sought to heighten the accountability of federal trial judges and to generate uniformity within the criminal justice system by creating a check on judges' sentencing powers.(14) Members who believed that a lack of uniformity often led to disparate treatment of particular defendants also were concerned about the rights of the accused.(15) To remedy these shortcomings, Congress drafted and passed the Sentencing Reform Act of 1984.(16)

Congress designed the Sentencing Reform Act to make sentences uniform and to afford all defendants the right to appeal a sentence.(17) Appellate review ensures uniformity because appellate judges do not substitute their discretion for that of a trial judge. Instead, appellate judges ascertain whether the trial court properly applied the guidelines(18) and whether the record justifies any departure from the sentence imposed by the trial court.(19) The Act does not indicate whether the defendant has the power to waive this appellate right.

Since the enactment of the Sentencing Reform Act, federal prosecutors have incorporated waiver language about sentencing in plea agreements on an ad hoc basis.(20) Prior to the Justice Department's 1997 directive, no federal waiver policy had been promulgated, yet numerous plea agreements containing the waiver language had been executed.(21) Appellate courts have had the opportunity to review many of these agreements and generally have held them to be enforceable.(22)

Not until the summer of 1997 did the government adopt a uniform federal policy.(23) To hamstring "lawless district court[s],"(24) the Department of Justice handed down a directive that prosecutors include the waiver language in all federal plea agreements.(25) The waiver language in one plea agreement reads:

[Defendant] voluntarily and knowingly waives thc right to appeal any sentence within the maximum provided in the statute(s) of conviction, or the manner in which that sentence was determined ... or on any ground whatever. [The defendant] also voluntarily and knowingly waives [his] right to challenge the sentence or the manner in which it was determined in any collateral attack, including but not limited to a motion brought under Title 28, United States Code, Section 2255. [The defendant] further acknowledges and agrees that this agreement does not limit the government's right to appeal a sentence, as set forth in Title 18, United States Code, Section 3742(b).(26) A defendant who accepts this language explicitly forfeits her right to appeal a sentence that is in excess of the Sentencing Guidelines but is below the statutory maximum, her right to appeal a calculation error in the computation of criminal history points and offense level, and her right to attack her conviction on collateral grounds, such as cruel and unusual punishment or disparate treatment.(27) In short, the defendant loses the right to appeal on "any ground whatever."(28)

In addition to the language advanced by the Department of Justice, the U.S. Judicial Conference is contemplating changing the Federal Rules of Criminal Procedure to permit such a plea.(29) That the Judicial Conference is considering making these changes seems to indicate that such a waiver currently is not valid. Rule 11 of the Federal Rules of Criminal Procedure requires judges to ensure that criminal defendants who have entered into plea agreements have entered into the agreements voluntarily and knowingly.(30) Two judges on the U.S. District Court for the District of Columbia have held that a plea with a waiver of the sort discussed in this Note was invalid in that it violated the requirements of Rule 11 and was contrary to sentencing guideline and contractual principles, standing fast against the tide washing over other circuits.(31)

Post-conviction waiver of the right to appeal sentencing, though a related topic, is not discussed in this Note.(32) The waiver at the time of sentencing does not seem as problematic as the waiver at the time of the plea agreement and Rule 11 colloquy because such agreements more likely than not would include mutually agreed upon sentencing terms under Rule 11(e)(1)(C) of the Federal Rules of Criminal Procedure.(33)

LEGAL CONSIDERATIONS SURROUNDING WAIVER OF THE RIGHT TO APPEAL SENTENCING IN A PLEA AGREEMENT

Competing legal considerations form the bedrock for the positions of those favoring enforcement of waivers of sentencing appeals and those opposing enforcement. This section presents the arguments for both sides, offers assessments of the arguments, and concludes that the legal considerations of those opposed to mandatory waiver outweigh those of the supporters.

Favoring Waiver

Those who support waiver of the right to appeal sentencing, like those who favor the Department of Justice's plan, make two main legal arguments. First, they argue that the waiver is analogous to other rights waived. Second, they contend that plea agreements are similar to contracts and that parties can negotiate in a market transaction to obtain terms that are mutually satisfactory, even mutually beneficial.

Proponents of waiver start with the straightforward proposition that one may waive any right: "Any right, even a constitutional right, may be surrendered in a plea agreement if that waiver was made knowingly and voluntarily.(34) In United States v. Mezzanatto,(35) the Supreme Court held that defendants could waive their rights under Federal Rule of Evidence (FRE) 410.(36) FRE 410 provides that statements made during plea negotiations may not be used against a defendant if the case were to go to trial,(37) but contains no express language about waiver.(38) In Mezzanatto, the defendant was charged with possession of methamphetamine with intent to distribute.(39) The government conditioned the plea agreement on Mezzanatto's truthfulness and ensured his cooperation by requiring him to waive his rights under FRE 410--as a condition of commencing negotiations--such that the government could use any lie to impeach Mezzanatto should the plea agreement fail.(40) Mezzanatto failed to be truthful on at least two issues, causing the prosecutor to cease plea negotiations.(41) Mezzanatto's case went to trial, at which time he denied involvement in methamphetamine trafficking.(42) The prosecutor used the prior inconsistent statements to impeach Mezzanatto and the court ultimately convicted him.(43)

The Court concluded that the wavier of a defendant's FRE 410 protection is well within the bounds of traditional waiver jurisprudence.(44) The Court analogized this waiver to the waiver of one's right against double jeopardy, right to a jury trial, right against self-incrimination, and right of confrontation.(45) Proponents of waiver argue that no inherent or functional difference exists between waiver of the right to appeal sentencing and those rights discussed in Mezzanatto.

Mezzanatto bears particular importance because there is no...