Friday, March 07, 2014

Appellate Waiver applies to appeal of term of imprisonment imposed for supervised release violation to be served consecutively.

In United States v. Banks, No. 13-2094 (3d Cir. Feb. 12, 2014), defendant Banks — while on supervised release for a bank fraud conviction — was charged with and pleaded guilty to conspiracy to commit bank fraud and to violating the conditions of his supervised release, pursuant to a plea agreement that included an appellate waiver. In sentencing, Banks requested a concurrent term of imprisonment for the supervised release violation. The District Court imposed a sentence of 18 months for the bank fraud and 33 months for the supervised release violation, to be served consecutively. On appeal, Banks argued that his consecutive sentence was not encompassed in the appellate waiver.

The Third Circuit, strictly construing the language of the waiver, held that the plea agreement language that waived "any appeal . . . which challenges the sentence imposed" did not suggest an intention to except consecutive sentencing from the waiver.

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