U.S. v. Perez, Crim. 98-CR-10389-NG.

• Decision Date: 08 April 1999
• Docket Number: No. Crim. 98-CR-10389-NG.,Crim. 98-CR-10389-NG.
• Citation: 46 F.Supp.2d 59
• Parties: UNITED STATES of America, Plaintiff, v. Jose Amable PEREZ, Defendant.
• Court: U.S. District Court — District of Massachusetts

46 F.Supp.2d 59

UNITED STATES of America, Plaintiff, v. Jose Amable PEREZ, Defendant.

No. Crim. 98-CR-10389-NG.

United States District Court, D. Massachusetts.

April 8, 1999.

Ronald Ian Segal, Lynn, MA, for Defendant.

Gavin A. Corn, U.S.Atty's Office, Boston, MA, for U.S.

MEMORANDUM AND ORDER

GERTNER, District Judge.

I. INTRODUCTION

Defendant Jose A. Perez ("Perez") has struck a plea agreement with the United States in which he agrees to plead guilty, under Fed.R.Crim.Pro. 11(e)(1)(B), and accepts, among other things, a limited waiver of his right to appeal and his right to bring a collateral challenge to his sentence. I find that the appeal waiver is against public policy, and unenforceable.¹ I strike the clause from defendant's plea agreement, which I will otherwise accept.

The government argues that the waiver is limited and appropriate. It is limited because Perez maintains the right to appeal a sentence above the range agreed to by the parties, and can even appeal on the basis of a contested criminal history category, a dimension of sentencing which was not covered by the agreement. The government argues that this waiver is lawful because the defendant, represented by counsel, has voluntarily given up these rights. If he can waive his right to a jury trial, so the argument goes, he can waive the right to an appeal.

I disagree with the government on both counts—that the waiver is appropriately limited, and that it is lawful. Perez gives up his right to appeal errors that probation makes, or even errors that I make, which would result in a lower sentence. The government strikes no such bargain. It could appeal any mistakes I make in failing to sentence the defendant at a higher level.

In a Guideline regime that presumes that the correct guideline sentence is a fair sentence, a sentence based on a mistake is plainly unfair. Moreover, in a Guideline regime that emphasizes rational pre-sentence investigations and sentencing hearings, that seeks to stem unwarranted disparities in sentences through a reasoned analysis at the trial court level and through appellate review of sentencing, the suppression of the right to appeal judicial errors is anathema.

Despite the attraction of the idea of maximizing a defendant's power by allowing him to sell whatever he has, the market for plea bargains, like every other market, should not be so deregulated that the conditions essential to assuring basic fairness are undermined. Understanding full well that all the circuits which have looked at this issue have approved of appeal waivers more unconditionally than I do here,² I nonetheless hold that appeal waiver clauses, including the limited one in the present case, are contrary to public policy and void.³

II. FACTUAL BACKGROUND

In his plea agreement, Perez agrees to plead guilty, under Rule 11(e)(1)(B), to one count of having distributed, and possessed with intent to distribute, approximately 61 grams of cocaine and 218 grams of heroin, in violation of 21 U.S.C. §§ 846 and 841(a)(1), and to one count of having been found unlawfully in the United States after having been deported following his conviction for an aggravated felony, in violation of 8 U.S.C. § 1326. Perez agrees in the plea agreement that his Combined Offense Level under the Sentencing Guidelines is Level 26.

Paragraph 6 of the plea agreement contains the following waiver clause:

Defendant is aware that he has the right to challenge his sentence and guilty plea on direct appeal. Defendant is also aware that he may, in some circumstances, be able to argue that his plea should be set aside, or his sentence set aside or reduced, in a collateral challenge (such as pursuant to a motion under 28 U.S.C. § 2255).

In consideration of the concessions made by the U.S. Attorney in this Agreement, Defendant knowingly and voluntarily waives his right to appeal or collaterally challenge:

(1) Defendant's guilty plea and any other aspect of Defendant's conviction, including, but not limited to, any rulings on pretrial suppression motions or any other pretrial dispositions of motions and issues;

(2) The adoption by the District Court at sentencing of any of the positions found in paragraph 3 [covering the Offense Level and the acceptance of responsibility reduction] which will be advocated by the U.S. Attorney with regard to offense conduct, adjustments and/or criminal history under the U.S. Sentencing Guidelines or application of minimum mandatory sentences; and

(3) The imposition by the District Court of a sentence which does not exceed that being recommended by the U.S. Attorney, as set out in paragraph 4 [covering sentence recommendation], even if the Court rejects one or more positions advocated by the U.S. Attorney or Defendant with regard to the application of the U.S. Sentencing Guidelines or application of minimum mandatory sentences.

In consideration of the concessions made by the U.S. Attorney in this Agreement, Defendant agrees not to seek to be sentenced or resentenced with the benefit of any successful collateral challenge to any counseled criminal conviction that exists as of the date of this Agreement.

Defendant's waiver of rights to appeal and to bring collateral challenges shall not apply to appeals or challenges based on new legal principles in First Circuit or Supreme Court cases decided after the date of this Agreement which are held by the First Circuit or Supreme Court to have retroactive effect.

Defendant's waiver also shall not extend to an appeal or collateral challenge based solely on the argument that the District Court misunderstood the scope of its authority to depart from the applicable Sentencing Guideline range, where the District Court states on the record at sentencing both its desire to depart and the basis on which it would depart if it had the legal authority to do so.

This Agreement does not affect the rights or obligations of the United States as set forth in 18 U.S.C. § 3742(b), and the U.S. Attorney therefore retains his appeal rights.

As waiver clauses go, the one in this case is fairly narrow. In particular, it would allow Perez to appeal any sentence above the guideline range agreed to (Level 26). In addition, it would allow him to appeal on the basis of a contested criminal history category since that was not a term settled in paragraph 3.⁴ Contrast the broader waiver clauses invalidated in United States v. Johnson, 992 F.Supp. 437 (D.D.C.1997) and United States v. Raynor, 989 F.Supp. 43 (D.D.C.1997). In Johnson and Raynor, the defendants were prepared to enter pleas pursuant to plea agreements in which they waived their "right to appeal any sentence within the maximum provided in the statute(s) of conviction." Johnson, 992 F.Supp. at 438; Raynor, 989 F.Supp. at 43. Thus neither would have been free, as Perez would be under his plea agreement, to appeal a sentence above the range he expected.

The government argues that the only right to appeal that Perez has actually given up is the right to appeal a sentence reflecting the government's decision to decline to recommend a reduction under U.S.S.G. § 3E1.1 because it decides that some action by Perez is inconsistent with his acceptance of responsibility. But the government underestimates the potential limiting power of the appeal waiver clause.⁵

Because Perez made a plea under Rule 11(e)(1)(B), I have the freedom to sentence him differently from the sentence he and the government have agreed to, and he cannot then withdraw his plea. Fed R.Crim.Pro. 11(e)(2). If I err by sentencing him at an Offense Level above Level 26, he can appeal any mistakes he thinks I have made. But if I err by failing to sentence him to a lower Level than it turns out he actually deserves, he is stuck. The government, in a reverse situation, however, has no such constraints. It can appeal any mistakes I make in going below the Level it bargained for, or in not going as high as it recommends.

The government argues that there is really no substantive loss here to Perez because he could not appeal a sentence he did not contest before me. Since the plea agreement commits him not to argue against my sentencing him at or below Level 26, he has lost nothing. But that is an oversimplification. As Perez understands things now, he and his counsel see no reason to contest the Level 26 to which he has pleaded. But under the Guidelines regime, we entrust probation with the obligation to do an analysis of the facts, independent of both the government and the defense. And we entrust the court to independently evaluate the sentence unconstrained by the parties' positions. Suppose probation comes to me with information, perhaps unknown to counsel, suggesting that I should sentence him at a lower range. Suppose, for example, that further investigation shows that the quantities of cocaine and/or heroin were significantly lower than agreed to in the plea agreement. Perez could try to argue that he should be sentenced to a lower range than he originally agreed to, that he did not have the benefit of this new information when he entered the plea agreement. If I fail to take this new information into account, I will have sentenced him unfairly. If he cannot appeal that mistake, the unfairness will have been compounded.

III. CAN PARTICULAR TERMS OF THE PLEA AGREEMENT BE INVALIDATED OR MUST THE COURT ACCEPT OR REJECT THE AGREEMENT IN TOTO?

Before addressing the merits of the issue, I must address a preliminary question —whether I can reject a particular clause in a plea agreement without rejecting the bargain in toto. In open court, Perez, through his counsel, clearly expressed his desire not to have to waive his right of appeal, but he also said he would rather keep the bargain he has struck than have no bargain at all. I hold that I have the authority to strike the waiver clause as contrary to public policy, while accepting the rest of the bargain the defendant has struck.

The government argues that...