FEDERAL PLEA AGREEMENT WAIVER OF APPEAL BITES THE HAND THAT CREATED IT

Federal Criminal Law attorneys often lament the lack of real bargaining power in plea agreements between the Government and Defendants in the Middle District of Florida – and in the case below the Southern District of Florida – often resulting in lopsided plea agreements with bloated provisions which require Defendants to waive their right to appeal among other unsavory actions. Usually, the result is catastrophic for an effective federal appeal should there be any subsequent sentencing issues in need of resoulution. In the case below the waiver of appeal in a Plea Agreement bites the Governments hand allowing the 11the Court of Appeals to reject the Government’s attempt to increase the Defendant’s sentence upon appeal.

United States v. Arthur Smith, No. 10–15044 

( September 7, 2011) Appeal from the United States District Court for the Southern District of Florida Panel: Tjoflat, Carnes, and Fay, Circuit Judges. Carnes, Circuit Judge: Affirmed Writing that “sentence appeal waivers serve interests of the judiciary as well as interests of the government and defendants,” the Eleventh Circuit yesterday refused to allow the government to withdraw its previously filed brief – in which it had argued that appellant Smith’s appeal waiver applied to preclude relief – and refused the government’s request to vacate the sentence and remand for resentencing under the Court’s recent decision in United States v. Rojas, 645 F.3d 1234 (11th Cir. 2011). The Court held hold that claims under the Fair Sentencing Act of 2010, like any other type of sentence claim, can be waived by a knowing and voluntary appeal waiver, noting that “a waiver would be worthless if it covered only issues that lacked merit.” Because it found that Appellant Smith’s appeal waiver was knowing and voluntary, it affirmed his sentence. The full text of the decision can be found here: 
http://www.ca11.uscourts.gov/opinions/ops/201015044.pdf 


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