Reflections on a Hobson's Choice: Appellate Waivers and Sentencing Guidelines

Abstract

Defender for four years. Ralph Buchanan, a young man in his early twenties, was charged with violating federal drug laws in the Middle District of Florida. The drug was methamphetamine and the penalties were severe. Despite Mr. Buchanan's youth and lack of a serious criminal record, he faced a possible sentence of life imprisonment if convicted after trial. Should he go to trial and risk life imprisonment, or cooperate with the government and enter a plea of guilty? If all went well with the plea, Mr. Buchanan's attorney advised him he faced a sentence of approxi mately ten years. Encouraged by the prosecutor, who was interested in Mr. Buchanan's cooperation regarding an unrelated crime, the defendant agreed to plead guilty and cooperate. He also executed a broad waiver of appeal, relinquishing his right to appeal any sentence imposed by the district court. The government insisted that Mr. Buchanan waive his right to appeal before it would consider making a substantial assistance motion pursuant to I5K1.1 or F. R. Crim. P. 35(b).1 In spite of Mr. Buchanan's best efforts, the government was unable to solve the unrelated crime and the prosecutor refused to make a motion for downward departure.2 Instead, the prosecutor argued at the sentencing hearing that Mr. Buchanan deserved the maximum sentence. Agreeing with the prosecutor, the district court enhanced the defendant's sentence from roughly ten years to life imprisonment without the possibility of parole.3 Faced with the reality of spending the rest of his days behind bars, Mr. Buchanan appealed the sentence. In a recent opinion, the Eleventh Circuit refused to hear the appeal, dismissing it on the grounds that he had knowingly and voluntarily waived his right to appeal as part of a valid plea bargain.4 As in Mr. Buchanan's case, federal prosecutors across the country are demanding that defendants waive their right to appeal a sentence ? or collaterally attack a conviction ? as part of negotiated plea agreements. Many waiver agreements find their origins in a 1995 memorandum authored by John C. Keeney, Acting Assistant Attorney General, and circulated to United States Attorneys, which encour ages the use of appellate and collateral waivers in the plea negotiation process.5 Although the Keeney memo suggests that appellate waivers are useful only in appropriate cases, many United States Attorney's Offices require defendants to waive the right to appeal as part of a plea agreement. Many prosecutors exact broad unilateral waivers like the one in Buchanan's case where a defendant, but not the government, waives the right to appeal almost any sentencing determination.6 In some districts, prosecutors go so far as to require defendants to waive their right to receive exculpatory evidence and impeachment evidence regarding government informants.7 Broad appellate waivers do irreparable harm both to individual defendants and to the fundamental