It has become the norm for the Government to insist in plea agreements, cooperating or otherwise, that the defendant waive his/her right to appeal the resulting sentence, as long as the sentence is no more severe than augured by the applicable advisory Sentencing Guidelines range.  So, if the facts of the case stipulated by the parties in the plea agreement point to a 12-18 months Guidelines range, then the defendant can only appeal if his/her sentence ends up being more than 18 months in jail; anything less is deemed within the pre-sentencing expectations of the defendant and non-appealable.  This now-form provision has its roots in efforts by the Department of Justice to reduce sentencing appeals, and is no longer even capable of being bargained out of a plea agreement.  It comes with the territory.

So, it is remarkable that the Third Circuit recently held that not only had the Government in United States v. Erwin, 2014 WL 4194129 (3rd Cir., Aug. 26, 2014) bargained for inclusion of an appeal waiver, but that bargain was so material to the agreement that when the defendant improperly filed an appeal contrary to its provisions, his breach freed the Government from its (actually-bargained for and truly important) commitment to file a U.S.S.G. 5K1.1 cooperation downward-departure motion for Erwin.  In addition to the usual argument that the appeal should be dismissed as improper, the Government had argued to the Court of Appeals that mere dismissal was not enough of a sanction — dismissal would not "make the Government whole for the costs it has incurred because of Erwin's breach ...." Id., at *6.  The Court agreed, finding that the Government had "devoted valuable resources to litigating an appeal that should never have been filed in the first place."  Id., at 8.

Let's pause for a moment.  These statements by the Court and the Government are nonsense.  As noted above, the appeal waiver is not even a subject of bargaining, and is now as boilerplate as any standard clause.   Also, the notion that a U.S. Attorney's Office, with a cadre of attorneys dedicated entirely to handling appeals, has incurred material costs or lost valuable resources in moving to dismiss an appeal on procedural grounds is absurd.

What's worse is the remedy sought by the Government and granted by the Court: a de novo sentencing with the Government freed of its obligation to re-file a downward-departure motion.  That motion, in contrast to the appeal waiver, was explicitly bargained for and is the sine qua non of the plea, without which the defendant may well have gone to trial rather than plead.  Conversely, the actual measure of the bargain obtained by the Government in exchange for that motion was (a) a guilty plea and (b) cooperation from Erwin, both of which were seemingly received in full measure.  Not only did the court get it wrong in terms of appreciating the true nature of the parties' exchange of commitments, but it did not even apply contracts law correctly.  It is not every breach by one party which justifies a failure to materially perform by the other; it is only the most material of breaches which carry that consequence.  So, a defendant's failure to enter the guilty plea or failure to fully cooperate and stay out of trouble would have been material breaches, justifying the Government's non-performance of its essential promise to seek a reduced sentence.  But a defendant taking a frivolous appeal?  Not material by any measure.

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