United States v. Riggi, No. 09-4391-cr (2d Cir. August 10, 2011) (Jacobs, Wesley, Chin, CJJ)
Philip Abramo’s case has been running for several years. He was originally convicted after trial of murder and racketeering charges, and received a life sentence. But the circuit reversed, finding that the admission of eight of his co-conspirators’ plea allocutions violated Crawford. See The Three Racketeers, posted September 6, 2008. On remand, Abramo pled guilty to reduced charges, carrying an eighteen-year statutory maximum. His plea agreement used the 2008 guideline manual, under which his range exceeded eighteen years, making eighteen years his guideline sentence. It also contained an appeal waiver, under which Abramo agreed not to challenge any sentence of eighteen years or less.
At sentencing, Abramo pointed out a potential ex post facto violation. The Commission increased significantly the guidelines for murder conspiracy in 1990, but the conspiracy to which he pled guilty ended in 1989. Under the 1989 guidelines, the sentencing range was 78 to 97 months. Nevertheless, the district court, looking to the nature of Abramo’s conduct, imposed an eighteen-year sentence.
On appeal, the circuit enforced the waiver and dismissed the appeal. The court agreed that the “violation of a fundamental right warrants voiding an appeal waiver” and reviewed the kinds of issues that trigger this. It also noted, however, that “other meaningful errors are insufficient” to void the waiver. The “decisive considerations dividing these cases appear to be the nature of the right at issue and whether the sentence was reached in a manner that the plea agreement did not anticipate.”
Here, “neither consideration” warranted voiding Abramo’s appeal waiver. While there is dicta in a 1997 case, Rosa, suggesting that an ex post facto violation might cause the court to set aside a waiver, even there the court enforced the waiver. Moreover, there was nothing about the sentence itself that warranted voiding the waiver. The judge was not biased, did not “abdicate his judicial responsibility,” and imposed the sentence that was contemplated by three separate provisions of the plea agreement.
Finally, the court rejected Abramo’s claim that, since he was unaware of his ex post facto rights, his “contract” – the plea agreement – was void as based on a mutual mistake of fact. The court ducked this, suggesting instead that it might be better “subsumed by a claim based on ineffective assistance of counsel. ” Such a claim can “survive an appeal waiver where the claim concerns the advice the defendant received from counsel.”