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: Second Circuit Sentencing Blog

Note To Appellate Lawyers: Getting Away From An Appeal Waiver

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United States v. Peter, No. 08-1544-cr (2d Cir. April 10, 2009) (found here)

Peter is, for the most part, an unremarkable procedural and substantive unreasonableness appeal.  But Peter's plea agreement contained an appellate waiver (just as most plea agreements do).  Yet, Peter was permitted to proceed with her appeal because the district court never adequately discussed that waiver with her on the record -- thereby opening up the opportunity for the appeal. 

It's therefore clearly important (when reviewing records on appeal) to be on the lookout for this potential loophole.  As the Second Circuit found:

Although Peter?s cooperation agreement contained a waiver of her right to appeal, the government concedes that the district court never questioned Peter on the record regarding her understanding of the waiver, and hence has not moved to dismiss the appeal as waived.  Gov?t Br. 7 n.5; see United States v. Tang, 214 F.3d 365, 368 (2d Cir. 2000) (?[A] waiver of the right to appeal should only be enforced by an appellate court if the record ?clearly demonstrates? that the waiver was both knowing . . . and voluntary.? (alteration in original) (internal quotation marks omitted)).  Accordingly, we do not further consider the waiver.





Full post as published by Second Circuit Sentencing Blog on April 11, 2009 (boomark / email).

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