Sunday, February 6th, 2005

Circuit Upholds Pre-Blakely Appeal Waiver in Unpublished Opinion

United States v. Fleischer, No. 04-3911 (2d Cir. Feb. 3, 2005) (UNPUBLISHED SUMMARY ORDER): In a little noticed unpublished summary order, a panel of the Circuit upheld an appeal waiver, contained in a plea agreement entered before the Supreme Court’s Blakely decision, and dismissed an appeal in which the defendant challenged his Guidelines-imposed sentence. In resolving this complicated question, the panel simply pointed to the Court’s earlier decision in United States v. Morgan, 386 F.3d 376 (2d Cir. 2004), as dispositive: Appellant’s argument that “the waiver provision in his plea agreement is inoperative because it was entered before the Supreme Court clarified the Sixth Amendment’s application” in Blakely and Booker “is clearly foreclosed by our recent decision in United States v. Morgan.” (Summary Order at 3).

Morgan, of course, says no such thing. Rather, Morgan involved an appeal raising a typical Apprendi challenge (to a sentence imposed under 21 U.S.C. § 841(a)) , and the appeal waiver was contained in a plea agreement entered into two years after the decision in Apprendi. 386 F.3d at 381 n.3. Indeed, Morgan explicitly reserved the question of whether a similar appeal waiver would be enforceable had it been entered before Apprendi was decided:

“We do not, of course, foreclose the possibility that an otherwise valid waiver might be deemed unenforceable against an Apprendi claim if a defendant can establish that he was unaware of his Apprendi rights at the time he entered into his plea agreement. However, it is not necessary to reach or to address that contingency here. Morgan, who entered his plea two years after Apprendi was decided, does not assert that at the time of the plea negotiations he was ignorant either of the Apprendi decision or of the alleged Apprendi error he urges here.” Id.

In Fleischer, in contrast, the appeal waiver was entered into before Blakely was decided. Thus, Morgan did not in any way “clearly foreclose” appellant’s argument that the waiver was unenforceable.

Thank goodness this result was reached only in a summary order and thus has no precedential value. The close and complicated question of whether a pre-Blakely appeal waiver is enforceable deserves much fuller analysis and treatment. Moreover, this summary order is clearly inconsistent with at least the spirit, if not the letter, of the Circuit’s decision in Crosby. As discussed in previous posts, Crosby remands essentially all cases in which the sentencing occurred before Blakely, even where no 6th Amendment objection was raised, and even where the facts underlying the Guidelines sentence were admitted by the defendant or found by a jury.

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