Third Circuit Holds Appellate Waiver in Plea Agreement To Be Strictly Enforced Without Exception

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Federal Defense Attorney, Hope Lefeber Discusses Recent Third Circuit Decision in U.S. v. Erwin, 2014 WL 4194129 (3d Cir. August 26, 2014), Upholding Appellate Waiver Despite the Court's Calculation of Guideline Level In Excess of Statutory Maximum

Hope Lefeber

Giving up a right of appeal is a significant undertaking by a defendant which may have a draconian impact

In U.S. v. Erwin, 2014 WL 4194129 (3d Cir. August 26, 2014), the U.S. Court of Appeals for the Third Circuit issued a decision dealing with a very important, and contentious, area of federal criminal procedure: appellate waivers. Having already considered the topic earlier in the year in U.S. v. Banks, 743 F.3d 56 (3d Cir. 2014), the Court revisited the issue in U.S. v. Erwin, __ F.3d __ (3d Cir. 2014). Federal criminal defense attorney Hope C. Lefeber discusses the case below.

In U.S. v. Erwin, the defendant pleaded guilty to possession of oxycodone with intent to distribute. In his plea agreement, the government included a waiver of his right to appeal his sentence if it was within or below the Guidelines range. In return for the defendant’s plea and appellate waiver, the government agreed to seek a 5 level downward departure and agreed not to bring any further charges against the defendant.

At the sentencing hearing, the circumstances of the defendant’s crime were taken into account. His offense level was calculated at 39, triggering a sentencing range beyond the statutory maximum. As agreed, the government sought a 5 level downward departure; but, the departure was calculated based on the offense level of 39. The defendant appealed, claiming that because level 39 imposed a sentence beyond the statutory maximum, it was an improper level to use as the starting point when calculating his departure. Since he could not actually be sentenced based on level 39 (because the result would be in excess of the statutory maximum), he believed that in order to get the full effect of his deal with the government the departure should have started at the statutory maximum—not beyond it. This would have produced a lower sentencing range.

Meanwhile, the government claimed that this appeal violated his waiver because the end result was, nevertheless, within the Guidelines range. The Third Circuit agreed. The Court, clearly worried about the expense that the government endured in defending this appeal and a desire to deter others from violating similar waivers, construed the appellate waiver very strictly. It granted the government’s request to vacate the sentence so that the defendant could be re-sentenced without any of the agreed reductions, as punishment for violating the appellate waiver.

In justifying this result, the Court relied on a “classic rule of contract law,” that a party should not be able to benefit from their own breach of the contract. But, as Ms. Lefeber explains, the Court ignored another classic contract law rule: that any ambiguities in the contract must be interpreted against the drafter. The defendant’s appeal was not frivolous. It raised an interesting question—what was the effect of getting a 5 level reduction if the starting point of the reduction was an impermissibly high sentencing range?

Ms. Lefeber explains that giving up a right of appeal is a significant undertaking by a defendant which may have a draconian impact, such as what occurred in this case. The government has tremendous leverage in requiring appellate waivers in plea agreements..
The reality is that appellate waivers can present tricky legal issues, unforeseen when the defendant signs. Ms. Lefeber warns that it is essential that defense counsel anticipate each and every possible issue and address them in the plea agreement, in view of this case.

Hope Lefeber is a federal criminal defense attorney in Philadelphia. With over 30 years experience, she is recognized by Superlawyers and is ranked by the National Trial Lawyers as one of the top 100 Criminal Defense Lawyers in the United States. Ms. Lefeber’s key areas of practice include defense in business and corporate fraud, mail and wire fraud, money laundering, tax fraud and other white collar crimes, conspiracy and drug offenses. Learn more about her at

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