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Showing posts from March, 2015

Panel's Appellate-Waiver Decision Draws Sharp Criticism from Colleagues

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 …