Friday, October 11, 2013

Think Twice Before Waiving 3582(c) Rights

Most versions of the standard plea agreement in Kansas have an appellate waiver, and most versions of that appellate waiver include a waiver of your rights under 18 U.S.C. 3582(c).  This is the statute that gives district courts jurisdiction to resentence a defendant when the Sentencing Commission enacts a retroactive change to the the guideline under which the defendant was sentenced.  The most recent example of litigation under 3582(c) is the application of Sentencing Guideline amendments 706 and 750, which led to the reduction of hundreds of crack sentences in Kansas.

Another change is on the horizon.  The Smarter Sentencing Act, (currently in committee) would rejigger mandatory minimum sentences downward, and direct the Sentencing Commission to alter the guidelines accordingly.  The Act would also retroactively apply the Fair Sentencing Act changes to the crack cocaine guidelines.  Both developments raise a strong possibility of retroactive guideline amendments.

If this Act becomes law, there will be some defendants who are very, very sorry that they waived their rights under 3582(c), because they will have no jurisdictional vehicle to achieve relief to which they would have otherwise been entitled.  Make sure when you negotiate your cases that you are getting market value for any decision to waive 3582(c) rights.  Preferable to that, negotiate such a waiver out of your agreement.

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