Challenging Appeal Waivers

As we have written about elsewhere, federal sentencing can be complicated.  Federal judges must correctly calculate the sentencing guidelines and properly weigh the sentencing factors set forth by congress.  As with any complicated area of the law, judges sometimes make mistakes, which is what appeals or for.

So why are there so few sentencing appeals in the federal system?

How the government avoids sentencing appeals

Unfortunately, most United States Attorneys offices have a policy of systematically attempting to deprive criminal defendants of their right to appeal.  How do they do this?  By refusing to agree to any plea bargains which do not contain a waiver of the defendant’s right to appeal.

So, because so many federal criminal cases result in a plea bargain of some kind, many defendants are forced to give up their valuable appellate rights.  Under an appeal waiver, the sentencing judge could calculate the guidelines incorrectly, or neglect important sentencing factors (such as the defendant’s personal history) and the Court of Appeals will be powerless to help.

Appeal waivers are not always enforceable!

Are appeal waivers impossible to overcome?  Usually – but not always.  In some cases, the Courts of Appeal have refused to enforce the waivers.  For example, what if the district judge did not ensure that the defendant understood the significance of the waiver at the change of plea hearing?  The waiver may be unenforceable.  In addition, the appellate courts have found that some errors are so fundamental that a defendant cannot waive them such as prosecutorial misconduct or ineffective assistance of defense counsel.

If you have been on the receiving end of legal errors in a federal criminal sentencing, consult a federal criminal defense attorney immediately even if you entered a plea agreement with an appeal waiver.  They can help you figure out whether you might be able to appeal the sentencing errors despite the waiver.


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