Feitel Law Firm


by Robert Feitel www.rfeitellaw.com

This blog contains an analysis of how appellate waivers in plea agreements can have unintended, unforeseen, and potentially disastrous consequences in criminal cases. In United States v. Boyd, 975 F.3d 1185 (11th Cir. 2020), the defendant pled guilty to possession of a firearm by a convicted felon. As part of the written plea agreement, the defendant waived his right to appeal a sentence that was within the “correct advisory guideline” range. The Probation Office concluded that the defendant’s prior state conviction for possession of marijuana with intent to distribute constituted a prior felony conviction and resulted in the doubling of his “advisory guideline” sentence from 51-53 months to 110-120 months. The district court overruled the defendant’s objection to this guideline calculation and sentenced him to 120 months of incarceration. The defendant appealed, claiming the district court improperly computed his guideline by considering the marijuana conviction as a prior felony; the Government moved to dismiss, relying upon the appellate waiver. The Court of Appeals began its analysis by noting that: (1) waiver provisions in plea agreements were enforceable; (2) the defendant had been advised that any predictions he had received about his possible guideline sentence by his attorney were not binding on the district court;  and (3) the 120 month sentence was within the statutory maximum for the charted offense. Moreover, the Eleventh Circuit justified the appeal waiver as follows:

plea agreements containing such waivers save the government time and money by conveying an immediate and tangible benefit in the saving of prosecutorial resources. A sentence appeal waiver is also of value to a defendant, because it is another chip the defendant can bring to the bargaining table and trade for additional concessions from the government.

975 F.3d at 1189, note 5 (emphasis added). While appellate waivers are certainly in the Government’s interest  (and perhaps also reduce the caseload of appellate courts), prosecutors are not generally in the habit of making more favorable plea offers in return for guilty pleas with appellate waivers (unless the defendant has a very strong legal argument). Rather, the benefit to the defendant from pleading guilty is generally the statutory three level sentence reduction provided by the federal sentencing guidelines. Whether intentional or not, in the Boyd case the waiver provision effectively insulated the district court’s decision as to the effect of the prior state conviction from federal appellate review. That is to say, that the court of appeals did not even reach the merits of the defendant’s claim. 

Appellate waivers are included in the vast majority of  written plea agreements in federal cases.  Most plea agreements also contain an estimate of the defendant’s criminal history category, with the caveat that it is just an estimate. With that in mind, there are some strategies for the defense to limit the consequences when Probation calculates a higher criminal history guideline than expected. First, in some jurisdictions, the defense can ask the Court to have the Probation Office calculate the defendant’s criminal history category before the change of plea hearing. While not a perfect solution, it does give the defendant (and counsel) a more concrete analysis of the issue. Second, a defendant could (should at least) ask that the plea agreement provide that it can be withdrawn without objection if the criminal history category calculated by Probation is higher than the estimate contained in the plea agreement, or preserve the right to challenge on appeal the calculation. See United States v. Cope, 452 Fed. Appx. 114 (3d Cir. 2011)(plea agreement appellate waiver specifically permitted challenge to criminal history calculation).

In that regard, this issue also applies to other aspects of a plea agreement. Most plea agreements not only identify the defendant’s criminal history category, but also delineate the specific offense characteristics that the parties agree apply to the case. There is always the chance, however, that Probation will determine that other upward adjustments apply. If the district court decides that the unforeseen adjustments are appropriate, a waiver would likewise preclude review of the issue on appeal. It would be prudent for the defense to bargain for the right to also withdraw the guilty plea if Probation finds that any other upward adjustments not agreed to by the parties in writing apply to the case, or preserve the right to appeal that determination. Whether the Government would agree to such a provision depends on the circumstances, but as with all things, prudent defense counsel should understand the issue and try to protect the clients interests and render effective assistance.  

Robert Feitel is a former federal prosecutor and now defense attorney in private practice specializing in the representation of defendants in international criminal cases. He can be reached through his website: www.rfeitellaw.com