The decision whether to appeal is ultimately the client’s. With a 4.32% reversal rate for criminal appeals in the Tenth Circuit, the decision to roll the appeal dice rarely yields benefits. But from the client’s perspective, what’s the harm? At least in the Third Circuit, a client’s decision to appeal in the face of an appeal waiver can backfire, as the defendant learned in United States v. Erwin.
Erwin entered into a plea agreement with an appeal waiver and an incorporated written cooperation agreement. Complying with the cooperation agreement, Erwin provided substantial assistance for which he received a 5-level reduction from the guideline range. Apparently dissatisfied, he appealed, raising three weak claims. After dispatching these, the Third Circuit considered the government’s argument that upholding the sentence wasn’t enough and that Erwin's appeal breached the agreement – according to the government, the Court should vacate the sentence so that the government would be made “whole” and to “deter other cooperating defendants from similar breaches.” That sounded like a good idea to the Third Circuit.
The court first decided that in light of fairly typical appeal waiver language, Erwin had “promised” not to appeal -- according to the Third Circuit, “common sense dictates” that there is no distinction between waiving a right and promising not to invoke it. The court next decided that breaking that promise constituted a “breach” of the plea agreement. The court didn’t carefully consider the broader implications of the rule that challenging a waiver constitutes the breach of a promise. Characterizing the plea agreement as “a classic bargained-for exchange,” (neo-classical economics explains criminal law so well, doesn’t it?) the court decreed that the defendant’s breach must be punished. It granted the government’s request for specific performance -- de novo resentencing with no obligation to file a §5K1.1 motion.
Erwin spawned an online law review article that discusses the dangers of incorporating cooperation provisions into plea agreements. Such agreements conjoin what should be independent – pleading guilty in exchange for, e.g., dismissal of counts, and receiving cooperation credit. Even though the cooperator provides the bargained-for substantial assistance and the government receives the benefit of that assistance, the defendant who appeals in the face of an appeal waiver entirely loses any benefit from cooperating. This punishment is hard to square with the claim that sentencing, including that of cooperators, should be controlled by the §3553(a) factors and the parsimony clause. The putatitve breach of an implied promise not to appeal hardly reflects that the defendant wasn’t entitled to that §5K1.1 reduction after all.
One more for the list of pitfalls found in standard plea agreements.
One additional thought [from Hansmeier]: read literally, under Erwin, the defendant dissatisfied with his sentence, and who entered into a plea agreement with an appeal waiver, need only file a notice of appeal to get a brand new resentencing hearing in front of a new judge. Considering that almost every plea agreement in Kansas contains an appeal waiver, whether or not the defendant actually benefits from the agreement, Erwin's logic might just work in a criminal defendant's favor. Of course, this assumes that a court of appeals would read Erwin for what it says, rather than for something else (or create an exception to negate this result).