3rd Cir Remands in light of Booker, even with appellate waiver

In US v. Herman Foman, No. 04-2508 (Apr. 7, 2005) (not-precedential), the Circuit remanded for resentencing in accordance with United States v. Booker, 125 S. Ct. 738 (2005). Although the opinion does not make any mention of it, the record reveals that the case involved a conditional guilty plea in which the defendant waived all of his appellate rights, except for the right to appeal the denial of his motion to suppress evidence. The appellate waiver language in Foman's plea agreement is identical to the broad appellate waiver language used in all plea agreements in the E.D. Pa. The Foman plea agreement reads in pertinent part as follows:

9. In exchange for the undertakings made by the government in entering this plea
agreement, the defendant voluntarily and expressly waives all rights to appeal or collaterally attack the defendant's conviction, sentence, or any other matter relating to this prosecution, . . . except as provided in paragraph 8 above [relating to defendant's right to appeal from the denial of the motion to suppress].

United States v. Herman Foman, Crim. No. 03-486, "Guilty Plea Agreement" p. 8. (entered on docket for E.D. Pa. Feb. 19, 2004).

The government in Foman, moreover, argued in its letter response commenting on the applicability of Booker that "Foman waived his right to raise any Booker claim in the appellate waiver in his plea agreement." (Gov. Booker letter in US v. Foman, Mar. 24, 2005).

In spite of the appellate waiver covering sentencing issues, this Court nonetheless remanded Foman for resentencing in accordance with Booker. The Court did not address the appellate waiver, but instead only stated,

Having determined that the sentencing issues appellant raises are best
determined by the district court in the first instance, we will vacate the
sentence and remand for re-sentencing in accordance with Booker.

Although it is difficult to know how much, if anything, to read into a not-precedential opinion which does not give the court's reasoning, it would appear the Circuit quite reasonably concluded that the Booker issue fell within the "miscarriage of justice" exception to appellate waivers carved out in United States v. Khattak, 273 F.3d 557, 562 (3d Cir. 2001).