Ex-Facto Knife

United States v. Riggi, No. 09-4391-cr (2d Cir. August 10, 2011) (Jacobs, Wesley, Chin, CJJ)

Philip Abramo’s case has been running for several years. He was originally convicted after trial of murder and racketeering charges, and received a life sentence. But the circuit reversed, finding that the admission of eight of his co-conspirators’ plea allocutions violated Crawford. See The Three Racketeers, posted September 6, 2008. On remand, Abramo pled guilty to reduced charges, carrying an eighteen-year statutory maximum. His plea agreement used the 2008 guideline manual, under which his range exceeded eighteen years, making eighteen years his guideline sentence. It also contained an appeal waiver, under which Abramo agreed not to challenge any sentence of eighteen years or less.

At sentencing, Abramo pointed out a potential ex post facto violation. The Commission increased significantly the guidelines for murder conspiracy in 1990, but the conspiracy to which he pled guilty ended in 1989. Under the 1989 guidelines, the sentencing range was 78 to 97 months. Nevertheless, the district court, looking to the nature of Abramo’s conduct, imposed an eighteen-year sentence.

On appeal, the circuit enforced the waiver and dismissed the appeal. The court agreed that the “violation of a fundamental right warrants voiding an appeal waiver” and reviewed the kinds of issues that trigger this. It also noted, however, that “other meaningful errors are insufficient” to void the waiver. The “decisive considerations dividing these cases appear to be the nature of the right at issue and whether the sentence was reached in a manner that the plea agreement did not anticipate.”

Here, “neither consideration” warranted voiding Abramo’s appeal waiver. While there is dicta in a 1997 case, Rosa, suggesting that an ex post facto violation might cause the court to set aside a waiver, even there the court enforced the waiver. Moreover, there was nothing about the sentence itself that warranted voiding the waiver. The judge was not biased, did not “abdicate his judicial responsibility,” and imposed the sentence that was contemplated by three separate provisions of the plea agreement.

Finally, the court rejected Abramo’s claim that, since he was unaware of his ex post facto rights, his “contract” - the plea agreement - was void as based on a mutual mistake of fact. The court ducked this, suggesting instead that it might be better “subsumed by a claim based on ineffective assistance of counsel. ” Such a claim can “survive an appeal waiver where the claim concerns the advice the defendant received from counsel.”

Thoroughly Unappealing

United States v. Buissereth, No. 09-5358-cr (2d Cir. March 15, 2011) (Cabranes, Chin, CJJ, Crotty, DJ)

This decision found great fault with a sentencing that “left much to be desired.” The district court “failed to (1) rule on the numerous filed objections to the PSR; (2) rule on the requests for downward departures and a variance; (3) adopt the findings of the PSR; (4) mention, much less articulate its consideration of, the relevant factors set forth in 18 U.S.C. § 3553(a); or (5) calculate an applicable sentencing range under the Sentencing Guidelines.”

Nevertheless, the sentence was within the range specified in the plea agreement’s waiver clause, and the waiver was otherwise valid. The court accordingly dismissed the appeal. But it did note that,= the waiver did not “relieve the District Court of its responsibility to follow the procedural requirements related to the imposition of sentence,” even if it “preclude[d] this Court from correcting the errors alleged to have occurred below.” That said, there is a point at which “an arbitrary practice of sentencing without [proffered] reasons would amount of an abdication of judicial responsibility subject to mandamus” and an appeal waiver would not be enforced.

This case, while bad, did not “present such an extraordinary circumstance,” since the record as a whole indicates that the court at least gave “due consideration to” the defendant’s sentencing arguments.

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.

Le Platt Du Jour

United States v. Woltmann, No. 10-413 (2d Cir. July 6, 2010) (Jacobs, Winter, Walker, CJJ)

Once again, Judge Platt’s unconventional way of doing business has resulted in a sentencing remand to a different judge. Here, the issue was his treating the guideline range in a plea agreement as binding, while ignoring a 5K1.1 letter and § 3553(a). This prompted the circuit to hold that the plea agreement’s appellate waiver was unenforceable and vacate the sentence.

Background

Pursuant to a cooperation agreement, Gary Woltmann pled guilty to tax fraud, then provided substantial assistance to the government in the successful prosecution of another tax case. The government duly filed at 5K1.1 letter that expressly asked for a sentence below the 18 to 24 month guideline range. But Judge Platt refused to consider the letter, viewing it as an effort to repudiate the plea agreement, in which Woltmann had agreed not to appeal a sentence of 27 months’ imprisonment or less. To the judge, that provision trumped both the 5K1.1 letter and the remaining § 3553(a) factors. He sentenced Woltmann to 18 months’ imprisonment, the bottom of the range.

The Circuit’s Ruling

After Woltmann filed a notice of appeal, the government moved to dismiss based on the plea agreement’s appeal waiver. Construing the plea agreement under “ordinary contract principles” but with “special due process concerns for fairness,” the court found the waiver unenforceable.

Appeals waivers are ordinarily enforceable without much controversy. But the circuit will not enforce one if the sentence was “reached in a manner that the plea agreement did not anticipate” or where the sentencing court “failed to enunciate any rationale for the defendant’s sentence, thus amounting to an abdication of judicial responsibility.” Both of these circumstances were present here.

First, the judge insisted on relying on the guideline range in the agreement - calling the agreement, amongst other things, “the controlling instrument” - notwithstanding “our law that such reliance is misplaced.” By misreading the plea agreement Judge Platt imposed a sentence “inconsistent with the parties’ expectations,” since the agreement, by its unambiguous terms, contemplated that the sentence would be imposed only after consideration of the 5K1.1 letter and § 3553(a). It was accordingly improper for the judge to reject the 5K1.1 letter because he felt it "repudiated" the agreement. In short, the judge “refused to consider the 5K1.1 motion and the § 3553(a) factors on the ground that the appeal waiver and the sentencing range in the [a]greement obviated anything else.” This rendered the appeal waiver unenforceable.

Judge Platt’s belief that the plea agreement constituted an “enforceable concession by Woltmann that any sentence at or below 27 months was appropriate” was likewise error. It amounted to an abdication of judicial responsibility - a second reason to deem the appeal waiver unenforceable.

Finally, the circuit ordered that the case be remanded to a different judge for resentencing, citing (1) the “scorn with which Judge Platt approached the matters pertaining to sentencing” (2) his “pattern of error regarding 5K1.1 letters” and (3) the fact that reassignment would not waste resources because all that the court need do on remand is what “courts do as a matter of routine.”

SORNA Doom

United States v. Hester, No. 08-4665-cr (2d Cir. December 16, 2009) (Winter, Cabranes, Hall CJJ) (per curiam)

After pleading guilty to two sex offenses in New York State, Hester was required to register as a sex offender. He completed his initial registration - which included explicit instructions that Hester update if he moved or changed jobs - and four change of address forms. Then, in April of 2007, he disappeared. Three months later, Hester was arrested on unrelated charges in Florida. He had neither registered as a sex offender there nor updated his New York registration.

Hester pled guilty to violating the Sex Offender Registration Act, “SORNA,” 18 U.S.C. § 2250(a), and was sentenced to 37 months’ imprisonment. On appeal, he raised three unsuccessful challenges to the statute: a due process claim that he had unsuccessfully litigated below and Commerce Clause and vagueness challenges that he had not.

The due process argument had two prongs. First, Hester claimed that he lacked sufficient notice of SORNA’s requirements. But, since Hester was clearly aware of the state-law requirements that he update his New York registration and register in Florida when moved there, there was no due process violation in his not being specifically notified of SORNA. Hester also argued that it was impossible for him to comply with SORNA because neither New York nor Florida had SORNA-compliant registration systems in place. But both jurisdictions had sex offender registries and Hester could have complied with them. That those states had not yet met SORNA’s administrative requirements did not excuse Hester’s failure to register.

Hester’s Commerce Clause and vagueness arguments were waived by his plea agreement, in which he waived his right to appeal his conviction and any sentence of 51 months or less. The waiver had a carve-out for the district court’s decision denying his motion to dismiss, but Hester did not raise those arguments in the motion to dismiss.

Cracked Up

United States v. Lee, No. 06-4933-cr (2d Cir. April 17, 2008) (Cabranes, Wesley, CJJ, Castel, DJ)

Defendant Cathy Lee received a 120-month sentence, the mandatory minimum, in a crack trafficking case. She raised on appeal a host of constitutional and statutory challenges to her sentence, claiming that it violated § 3535(a), the Eighth Amendment, and equal protection, in light of the powder-vs-crack sentencing disparities.

The court held that these claims were waived by the appellate waiver in Lee's plea agreement. Although such waivers will not be enforced when an "arguably unconstitutional" consideration influenced the sentencing, there was no such consideration here. The equal protection argument with respect to crack sentences is a claim about the statute itself, not a claim that the court considered an improper factor at sentencing. Moreover, the court rejected the equal protection statutory argument nearly fifteen years ago, and no subsequent legal development - including Kimbrough - is a basis for changing this view.

Not-So-Fast Track

United States v. Liriano-Blanco, No. 06-2919-cr (2d Cir. December 11, 2007) (Walker, Calabresi, Sack CJJ)

In this unusual case, the circuit entertained an appeal despite a waiver. Liriano-Blanco pled guilty to illegal reentry under a plea agreement in which he agreed to waive any appeal of a sentence of 60 months or less, with a Guideline range of 57 to 71 months. At his sentencing, he asked for a below-Guidelines sentence to avoid “the disparity caused by the existence of fast-track programs in other districts.” The district judge was sympathetic to this argument, and agreed that there was an unwarranted disparity. He indicated that he would like to give a four-level downward departure for this, but thought that he was not permitted to. Erroneously believing that Liriano-Blanco could appeal the sentence, the judge invited him to do so: “Hopefully, maybe, the Second Circuit may disagree with me and [I’ll] be able to give a lesser sentence when they send it back.” After an uncontested criminal history departure, the court sentenced Liriano-Blanco to 46 months and, despite the waiver, he appealed.

Here is how the circuit untangled this mess. First, it observed that the ultimate question - whether a district court can impose a non-Guideline sentence in response to fast-track disparities - is still open in this circuit and is not “frivolous,” since its answer is “not a foregone conclusion.” But it decided it could not answer it here, because of the appeal waiver.

But the court very obligingly gave Liriano-Blanco a second bite at the apple, out of its “concern regarding mistaken statements by [the] sentencing judge about the defendant’s right to appeal.” The district court “relied on the possibility of appeal” in choosing a higher sentence, and the AUSA did not correct the judge’s error by pointing out that the appeal had been waived. The circuit concluded that, although it could not decide the case on the merits, there was nothing in the waiver to bar the court from returning the case to the district court so that, “having been made aware that Liriano-Blanco cannot appeal its decision, it might resentence him if it sees fit to do so.”

As for the fast-track question itself, we’ll just have to wait and see.