Thursday, February 07, 2008

Plea Agreement Waiver of Right to File “Any Appeal” Bars Appeal of Restitution Order

At issue in United States v. Perez, No. 06-2036, is whether an appeal of a restitution order is barred by an appellate waiver.

The plea agreement contained a broad waiver of the right "to file any appeal, any collateral attack, or any other writ or motion" as well as a stipulation that loss amount was between $70,000 and $120,000. During sentencing, the defendant further stipulated to the loss amount of $73,476.

On appeal, the defendant argued that restitution is not technically a component of his sentence such that an appeal of restitution is not barred by the waiver. The waiver, he continued, only applies to challenges to the conviction and duration of confinement.

The Court rejected this argument, relying on prior cases law that restitution, ordered as part of a criminal sentence, is a criminal penalty. See United States v. Leahy, 438 F.3d 238 (3d Cir. 2006).

The Court observes that the plea colloquy was thorough and that it included a "lengthy discussion specifically regarding the waiver of appellate rights contained in the plea agreement."

There is a circuit split on this issue: Specifically the Fourth, Sixth, Tenth, and now the Third Circuits hold that a defendant who knowingly and voluntarily waives his right to appeal his sentence has waived the right to appeal a restitution order whereas the Second, Eighth and Ninth Circuits do not.

In closing, the Court cites Leahy for the proposition that restitution amounts need not be admitted by the defendant nor proven to a jury beyond a reasonable doubt.

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