Appeal waivers in the wake of Booker

Thanks to Appellate Law & Practice I see here that the Second Circuit today, in addition to its notable Fagans ruling (discussed here), issued a brief opinion on appeal waivers in US v. Morgan, No. 03-1316 (2d Cir. Apr. 27, 2005) (available here).  Morgan, in both outcome and approach, is similar to the Seventh Circuit’s recent discussion of appeal waivers (per Judge Posner) in Bownes (available here).  Both decisions essentially say that defendants received benefits with the pre-Booker plea bargain that induced the waiver of appeal rights, and the legal change ushered in by Booker does not provide a legitimate basis for a defendant to now upset that bargain.

A number of weeks ago, I discussed at length in this post the law, policy and practice of appeal waivers in the wake of Booker.  Seeing the approach taken in Morgan and Bownes has me concerned that circuit courts are examining appeal waivers only from a defendant perspective and not from a system-wide perspective.  As explained in my prior post, whatever one thinks of claims that defendants should or should not be held to pre-Booker deals with appeal waivers, there is a separate argument, based in congressional-intent concepts and drawing on Justice Breyer’s remedial work in Booker, that it is against public policy to let prosecutors and defendants completely opt-out of appellate review because Congress strongly favors the “retention of sentencing appeals … to iron out sentencing difference,” Booker, Breyer slip op. at 21.

As I suggested in my prior post, even if this public policy argument does not call for declaring appeal waivers unenforceable post-Booker, I think it does suggest that circuit courts should now at least review all appealed sentences for reasonableness (as the Eighth Circuit did in Killgohere).  And, again because of Justice Breyer’s strong advocacy of congressional interest in appellate review, this public policy argument perhaps also suggests that district courts post-Booker should reconsider the appropriateness of accepting pleas with broad appeal waivers.