The fate and future of appeal waivers?
A remarkably important and remarkably under-examined feature of the pre-Blakely/Booker world of federal sentencing involved the widespread use of appeal waivers in plea agreements. As suggested here, we are already seeing some varied circuit approaches to addressing the fate of pre-Blakely/Booker appeal waivers, and of late I have been pondering the law, policy and practice of post-Booker appeal waivers.
Appeal waivers — which can be very broad or quite narrow — have long been controversial in the federal system, and different US Attorney Offices and different district judges have had different policies and approaches to such waivers. See generally Windows into Sentencing Policy and Practice: the Crack/Cocaine Ratio and Appeal Waivers, 10 Fed. Sentencing Rep. 179 (1998). Every federal circuit has upheld the generally validity of such waivers of appeal, although a number of judges have expressed concern that such waivers are “inherently uninformed and unintelligent” and that broad appeal waivers frustrate Congress’s policy decision in the Sentencing Reform Act to utilize appellate review to help eliminate unwarranted sentencing disparity. See id. at 181-82.
As detailed in a Second Circuit brief available for download below, the government seems inclined to try to continue to enforce, though motions to dismiss a Booker appeals, ple-Blakely appeal waivers. But the “old” arguments against enforcing appeal waivers seem especially potent now: (1) from a defendant’s perspective, appeal waivers entered pre-Blakely were obviously uniformed and unintelligent concerning the realities of a post-Booker world, and (2) from a system-wide perspective, Justice Breyer’s remedial work in Booker asserts that Congress would strongly favor the “retention of sentencing appeals … to iron out sentencing difference.” Booker, slip op. at 21.
For these reasons, I think a strong argument can be made that pre-Blakely appeal waivers should now be unenforceable or that circuit courts should now at least review all appealed sentences for reasonableness, as the Eighth Circuit did in Killgo (details here). And, again because of Justice Breyer’s strong advocacy of Congressional interest in appellate review, perhaps district courts post-Booker ought to have renewed concerns about accepting pleas with appeal waivers.