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December 29, 1997


The opinion of the court was delivered by: FRIEDMAN

 Defendants Terry Leon Raynor and Cynthia D. Lewis entered into plea agreements with the government that initially contained the following language:

Your client understands and acknowledges that Title 18, United States Code, Section 3742 affords a defendant the right to appeal the sentence imposed after a plea of guilty or trial. After consultation with counsel, and in exchange for the concessions made by this Office in this plea agreement, your client voluntarily and knowingly waives the right to appeal any sentence within the maximum provided in the statute(s) of conviction, or the manner in which that sentence was determined, on the grounds set forth in Title 18, United States Code, Section 3742 or on any ground whatever. Your client also voluntarily and knowingly waives your client's right to challenge the sentence or the manner in which it was determined in any collateral attack, including but not limited to a motion brought under Title 28, United States Code, Section 2255. Your client further acknowledges and agrees that this agreement does not limit the Government's right to appeal a sentence, as set forth in Title 18, United States Code, Section 3742(b).

 Plea Agreement at 4.

 The Court refused to accept the pleas, concluding that the government may not condition its agreement to a plea on a defendant's waiving his or her right to appeal a sentence that has yet to be imposed -- a sentence that may ultimately be illegal, unconstitutional or otherwise improper. The Court explained its reasons from the Bench and memorializes them here. *fn1"

  The obligation of the Court under Rule 11 of the Federal Rules of Criminal Procedure is to assure that a plea is voluntary and that whatever rights the defendant waives incident to the plea are waived knowingly, intelligently and voluntarily. It is this Court's view that a defendant can never knowingly and intelligently waive the right to appeal or collaterally attack a sentence that has not yet been imposed. Such a waiver is by definition uninformed and unintelligent and cannot be voluntary and knowing. See McCarthy v. United States, 394 U.S. 459, 466, 22 L. Ed. 2d 418, 89 S. Ct. 1166 (1969) (to be valid under Due Process Clause, Rule 11 waiver must be "an intentional relinquishment or abandonment of a known right or privilege"). Until the sentence is imposed, the defendant cannot possibly know what it is he or she is waiving. A plea that requires such a waiver of unknown rights cannot comport with Rule 11 or the Constitution.

 The waiver sought by the government in this case contrasts with every other waiver provision typically included in a plea agreement. Every other right that normally is relinquished is a known, well-defined right, and the quid pro quo is understandable. For example, when a defendant gives up the right to trial in favor of a plea, he or she knows that there will no longer be twelve jurors sitting in judgment, that there will no longer be live testimony and the right to confront witnesses, and that there will be no speedy and public trial. The defendant also understands that he or she is giving up the privilege against self-incrimination because the defendant must acknowledge guilt before the plea can be accepted. Moreover, when a defendant waives the right to a trial by jury in exchange for a plea to fewer counts or a lesser offense, the defendant not only gives up any advantages that may come with a jury trial but also is relieved of the uncertainties that may result from exercising the right to trial.

 When a defendant waives the right to appeal a sentence, however, he or she is freed of none of the uncertainties that surround the sentencing process in exchange for giving up the right to later challenge a possibly erroneous application or interpretation of the Sentencing Guidelines or a sentencing statute. For example, when it comes time for sentencing in this case, this Court could make incorrect, unsupportable factual findings with respect to the amount of drugs involved, the nature of the relevant conduct to be considered or whether either of these defendants was involved in more than minimal planning with respect to the narcotics conspiracy to which they pled. Under the plea agreement proffered by the government, the defendants would have no right to ask the court of appeals to correct the illegal or unconstitutional ramifications of such sentencing errors.

 Suppose a case where the facts support embezzlement in the amount of $ 100,000, but a court, by mistake or on whim, finds that the amount embezzled was one million dollars. Suppose a case where the amount of cocaine base or crack involved was five grams, but the court, by mistake, makes a factual finding (perhaps because of a grave mathematical error) that there were 50 grams. The sentencing range under the Guidelines would be increased drastically and unjustifiably, and the statutory mandatory minimum sentence would be ten years instead of five; yet, there would be no right to appeal because that right had been irrevocably waived at the time of the plea. Or suppose that a defendant has two prior convictions that ought to be counted towards his or her criminal history points, but the probation officer in preparing the presentence investigation report erroneously concludes that there are five offenses that should be considered, and the court adopts the probation officer's mistaken conclusion. The defendant would be placed in Criminal History Category IV, V or VI, instead of II or III and would receive a much more substantial sentence as a result; yet he or she would have no right to appeal. Barring the possibility of a clairvoyant defendant, in none of these cases could there be a knowing and intelligent waiver of the right to appeal and to collaterally attack such sentences.

The disadvantage of the broad sentencing appeal waiver is that it could result in guideline-free sentencing of defendants in guilty plea cases, and it could encourage a lawless district court to impose sentences in violation of the guidelines. It is imperative to guard against the use of waivers of appeal to promote circumvention of the sentencing guidelines. . . .

 Id. at 3. Indeed, the Justice Department, jealously guarding its own appellate rights, recommends that its attorneys file appeals in certain cases even where both the government and the defendant have ostensibly waived their rights to appeal:

Use of waiver of appeal rights in a manner resulting in sentences in violation of the sentencing guidelines could prompt a court of appeals to reconsider its decision to uphold the validity of a sentencing appeal waiver. Alternatively, the reviewing court could construe a sentencing appeal waiver narrowly in order to correct an obvious miscarriage of justice. To avoid these concerns, we recommend that, in a case involving an egregiously incorrect sentence, the prosecutor consider electing to disregard the waiver and to argue the merits of the appeal. That would avoid ...

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