If you are a drug dealer with a Criminal History Category of I, and you cooperate, sign an appeal waiver, and then breach the appeal waiver because you are unhappy with the sentence of 188 months (151 to 188 months was the range after the cooperation departure motion) rather than somewhere at or below the statutory maximum of 240 months (without the statutory max., the range was 262 to 327 months) , what’s the worst that can happen? According to the Third Circuit, a defendant who breaches the plea agreement in such a situation will find his 188 month sentence vacated, and the case remanded for resentencing without the motion for departure! See United States v. Erwin, No. No. 13–3407 (3rd Cir., August 26, 2014). That is, your breach of the appeal waiver just cost you up to 52 months of extra prison time.
The Third Circuit applied contract principles to reach this result. A civil practitioner makes this point: Contract principles are intended to put the government in the same place that it would have been absent the breach. That would require the defendant to pay the cost of the government’s appeal. Contract principles are not intended to be punitive, and more than four years extra in prison appears to be punitive rather than restorative in nature. The correspondent asks: Is the remedy chosen by the Third Circuit consistent with contract principles the court claims to apply?
What do you think?
RGK
Hercules and the umpire. 
I call bullshit. This seems pretty basic, but when you breach a contract, you get damages for the breach, not for the entire contract, no matter what the contract says.
Erwin testified to the various aspects of the Erwin Organization that distributed oxycodone. His testimony assisted in the conviction of 20 other people. The question, then, is what should the damages be for breach of contract?
The breach was that he appealed in violation of the agreement. The damages, presumably, are wasted time and resource on the part of the United States. This makes sense. What makes no sense is the remedy, imprisonment. How does spending more money on imprisoning him for longer right the government? Instead, it punishes the defendant for breaking his contract. That is, by definition, punitive.
A contractual answer would have been to have him pay the damages sustained by the government, which should be fairly easy to calculate here. Simply track the number of hours spent on the appeal and figure out the salary of those involved, and then charge him with that amount. If he insists on filing frivolous appeals, the court may require him to pay court fees before filing another document.
The extreme specific performance remedy suggested by the court only makes sense if Erwin never performed any part of the contract.
Nobody likes a rat. Not even the circuit. A rat is just a criminal without any honor at all, and when he gives a court a chance to burn him, he gets burned.
Judge,
Easing out of lurker mode: I was surprised to see the Third Circuit rule as it did. In my experience, appellate waivers (and the related collateral-attack waivers) exist with sort of a wink and a nod, despite the contract-law principles supporting their creation and enforcement. Many many *many* defendants who plea nevertheless appeal their sentences when the reality of incarceration comes crashing down on them. Courts and prosecutors expect this, and it is for that reason that the Third Circuit has a procedure for summarily affirming, sans briefing, when a defendant appeals despite the presence of a waiver. The florid language about being bound by contracts usually comes out when the *government* breaches the plea agreement, because the damage to the defendant–usually in the form of an extended sentence–is so much more quantifiable. Making the government work harder–the usual result of the defendant’s breach–seems a pittance by comparison.
On the other hand, the Third Circuit has departed from its brethren on waiver issues in the past. In so doing, it often follows the Seventh Circuit. Thus, for example, in United States v. Mabry, the Third Circuit joined with the Seventh Circuit in refusing to ignore certain comprehensive waivers when a defendant claims that trial counsel failed to appeal despite being asked to do so–a precedent that becomes even stronger after Erwin.
But what puzzles me about Erwin is how in the world it’s supposed to apply. I wonder if it’s confined to circumstances like the present, where a defendant has benefited from cooperation adjustments…but that happens quite a bit. What the decision suggests, somewhat darkly, is that it’s really all up to the government’s whim. The government can decide in any given case whether to pursue the Circuit’s process for activating the waiver (moving for summary affirmance) or insisting that the case go to briefing so that greater punishment can be imposed below.
(And: color me surprised that this snuck past C.J. McKee, whom I imagine would find the level of uncertainty this raises in criminal appeals to be unpalatable.)
True as that may be, it is not justice. It is swatting a gnat.
No doubt the court of appeals had no sympathy for Mr. Erwin. The difficulty with the court’s “burning” him is the potential damage it’s done to its jurisprudence.
Apparently the third circuit does not think my taxes are high enough so it wastes more tax dollars. Let me assure all judges who spend tax dollars every time they sentence someone, I pay enough taxes. I am surprised they did not issue the opinion on September 15 when we send in our quarterly payments.
May be the circuit should have announced this new rule and then invoked the rule of lenity and dismissed the appeal, reserving this remedy only for appeals filed after this is published. This kind of appellate sandbagging does not comport with “due process”.
TF.,
I do agree with you that is pretty harsh medicine absent a blunt warning beforehand. Your solution is a good one.
All the best.
RGK
I am not even going there. We have a bigger problem in Indiana: people may agree to plainly illegal sentences and, as long as they received a benefit, may not challenge a sentence’s plain illegality. By “plainly illegal,” I mean plainly contrary to any statutory authority. Such sentences in the fed system are said, among other things, to bring disrepute on the judiciary. In Indiana, they’re just another day at the office.
I forgot to add: the State, of course, may appeal an illegal sentence. And it may do so at any time, if I read the cases correctly.
I think that the practice of handling appeal waivers is more complicated than it may first appear. I believe that courts may likely require the attorney representing the appellant to file an Anders brief and move to withdraw. It appears that the courts want to be sure that there are not valid issues, even if there is an appeal waiver. In addition, I believe that attorneys are likely to file a notice of appeal when there is an appeal waiver because of concerns that the attorneys could be considered ineffective for failing to file a notice of appeal. Thus, although it may seem that an appeal waiver is a straight bar to an appeal, it appears that in many cases the appeal goes forward.
Further, even if the government files a motion to dismiss the appeal, that may occur after the appellant’s attorney has filed a brief. I think that the government typically does not file a motion to dismiss the appeal based on an appeal waiver at the beginning of the appeal. Elaine Mittleman
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