United States v. Morgan, Docket No. 03-1316 (2d Cir. April 27, 2005) (Straub, Pooler, Parker) (Op. by Parker): You win some, you lose some. A mixed bag for defendants from the Circuit today: a good decision in Fagans, and an awful one in Morgan. In a short opinion — issued “on reconsideration” — that is equally short on reasoning or analysis, the Circuit joined the 2 or 3 other circuits that have decided this issue and held that an appeal waiver, even if it was entered into before either Blakely or Booker was decided, will be enforced and thus will bar an appeal raising a Booker claim. This is the central passage:
“Morgan entered into his plea agreement [which included a waiver of his right to appeal any sentence within a stipulated range] after Apprendi v. New Jersey, 530 U.S. 466 (2000), but before Booker/Fanfan. Thus, there is every reason to assume that Morgan had knowledge of his Apprendi rights at the time he entered into the plea agreement. That Morgan did not, by contrast, have knowledge of his rights under Booker/Fanfan makes no material difference. His inability to foresee that subsequently decided cases would create new appeal issues does not supply a basis for failing to enforce an appeal waiver. On the contrary, the possibility of a favorable change in the law after a plea is simply one of the risks that accompanies pleas and plea agreements.”
Op. at 3-4.