Waiving Bye-Bye

United States v. Arevalo, No. 09-0576-cr (2d Cir. December 21, 2010) (Jacobs, Kearse, Straub, CJJ)

Defendant Manuel Vigil pled guilty to conspiracy to commit murder in aid of racketeering and using a firearm in connection with a crime of violence. He did so pursuant to a plea agreement that contained an appeal waiver - he promised not to “file an appeal or otherwise challenge” his conviction or sentence if the district court imposed a sentence of 195 months’ imprisonment or less.

When he was sentenced, although Vigil disputed certain facts in the presentence report, the district court did not resolve any of the disputes. It ultimately sentenced him to 157 months’ imprisonment.

Despite the waiver, Vigil filed a pro se notice of appeal. His attorney then filed an Anders brief, but the circuit bounced it. After counsel repeatedly ignored the court’s orders to cure the Anders brief, the court appointed new appellate counsel, who argued that the district court violated Rule 32(i)(3) by not resolving the factual disputes, and that this was not covered by the appellate waiver.

That Rule requires the district court to either “rule on” or deem immaterial “any” dispute relating to the presentence report. The Second Circuit had not previously decided whether an appellate waiver covered Rule 32 errors. Here, however, it held that the waiver applied. The language of the waiver that Vigil agreed to “plainly includes a waiver of his right to claim errors arising out of the ... crafting of Vigil’s sentence.”

Nor did the Rule 32 error void the appellate waiver, even though a defendant’s interest in the accuracy of the presentence report continues after sentence is imposed. The harm associated with potential errors in the report - primarily relating to decisions made by the Bureau of Prisons based on the report’s contents - does not amount to a due process violation, unlike, say, a district court’s reliance on such erroneous information.

Dont Speak!

United States v. Gutierrez, No. 08-3581-cr (2d Cir. February 11, 2009)(Cabranes, Sotomayor, CJJ, Rakoff, DJ)

Before Gutierrez was sentenced, his counsel filed a lengthy sentencing memorandum outlining five separate grounds for a below-guideline sentence. The government’s written response sought a guideline sentence. At sentencing, the court did not address the attorneys at all. It gave Gutierrez an opportunity to speak, indicated that it had considered the § 3553(a) factors, then imposed a sentence at the bottom of the guideline range.

Defense counsel objected, pointing out that the court had not considered the issues raised in his sentencing memorandum, and that the court had imposed a sentence without giving counsel a chance to speak. At counsel’s request, the court vacated the sentence. Counsel then argued the issues in the sentencing memorandum, and the government briefly responded, again asserting that a guideline sentence would be appropriate. Counsel responded by pointing out that neither the government nor the Probation Department had much credibility on that point, since they argued that a guideline sentence is the correct one in every case, which counsel argued was untrue. In response, the court told defense counsel, in essence, to shut up. It complained that he did not “respect the people who are working here” and ordered him to be “quiet” from then on. The court then reinstated the prior sentence, still without addressing any of counsel’s arguments.

The circuit affirmed. It agreed that under Rule 32 the sentencing court is required to give defense counsel an opportunity to speak. But here, the court followed the correct procedure. It vacated the prior sentence, and permitted defense counsel to make an argument. The court also rejected the claim that the district court did not give counsel a “meaningful” opportunity to be heard.

Comment

This case is maddening. Defense counsel made several specific arguments about why a below-guideline sentence should be imposed. And, even though the district court sentenced the defendant twice, it never addressed any of them, and the circuit was not bothered by this at all. It simply cannot be right that, as long as the sentencing court mentions 3553(a), it does not have to rule on the arguments raised by the defense.