The Court yesterday published a four-judge dissent from the denial of en banc review in what was arguably last year’s most important decision for criminal law practitioners — and certainly the most important for defendants who, after waiving the right to appeal, suffer a sentence premised on legal error.
In United States v.Erwin, 765 F.3d 219, the panel held last summer that in the event a defendant appeals such a sentence in violation of a knowing and voluntary waiver, the government may obtain a remand for resentencing at which it may invoke any breach provision authorizing the withdrawal of consideration given in exchange for the guilty plea. (A well-established exception, which the panel reaffirmed, permits appeals when enforcing the waiver would work a miscarriage of justice.) At Christopher Erwin’s sentencing, a Section 5K1.1 motion had saved him 4⅓ years from the Sentencing Guidelines’ recommended 20-year prison term. Despite an appellate waiver, Mr. Erwin took his case to the Third Circuit and argued that the district court had started from an erroneously high level in measuring the 4⅓-year downward departure. Opposing the appeal based on the waiver, the United States Attorney’s Office for the District of New Jersey sought a remand where it promised (perhaps “threatened” would be more apt) to seek a “modest increase” per a clause providing that the defendant’s breach would release the government from the obligation to file a motion under Section 5K1.1.
Among those judges who did not sit on the original panel, it appears the vote against en banc review was a narrow 6-4 split. (The order denying rehearing indicates that Judge Shwartz abstained.) In dissent, Judge Ambro, joined by Judges Rendell, Greenaway, and Vanaskie, marshals cogent criticisms that one hopes might attract the attention of four Justices on a petition for certiorari. The proper remedy, Judge Ambro explains, was simply to affirm the sentence based on the waiver: “End of case.” By also remanding for resentencing, the panel veered from “traditional contract principles,” which do not provide the government more than the benefit of its bargain by the remedy of an opportunity to sentence Erwin again without an obligation to compensate him for his cooperation.
Joining “the growing chorus of commentators who have lamented this decision,” the dissent quotes one critic’s well-founded concern for “those defendants who have legitimate appellate issues [who] decline to appeal for fear of a harsher sentence if the court deems the appeal within the scope of their appellate waiver.” Another commentator’s derision of the panel’s opinion as “ignominious” also wins the dissent’s recognition, as do numerous other published criticisms.
"In every one of the thousands of criminal appeals this Court has heard since the first appellate waiver in a plea bargain," Judge Ambro concludes, "we have never before held that an attempt to litigate a waived argument opens the door to a harsher sentence. Yet here we do. This cuts counter to how we have acted, and it goes against the majority of cases in other circuits.” The emphasis is the dissent’s, and the contrary precedents are from the Fourth, Eighth, and Tenth Circuits.