We close out 2009 with two interesting per curiam opinions.
In United States v. MacPherson, No. 08-1829-cr (2d Cir. December 30, 2009) (Newman, Calabresi, Katzmann, CJJ) (per curiam), the defendant argued that the government violated a Pimentel-like non-binding plea agreement by advocating for a sentence higher than the estimate contained in the agreement. In the majority opinion, the court simply held that its precedents on this issue are in conflict, and that, given this, MacPherson, who did not argue in the district court that the government breached the plea agreement, could not establish plain error. Judge Newman concurred. In his view, not only was there no plain error, there was no error at all. He then made an inconclusive effort to harmonize the conflicting precedents, in the end noting that he would “uphold all plea agreements with Pimentel estimates, regardless of whether the Government at sentencing advocates a higher Guidelines range (even one based on previously known facts), as long as the agreement makes clear that the Government is not bound by the estimate and the district judge ascertains at the plea colloquy that (1) the defendant understands that the estimate is not binding and (2) if the estimate is wrong, the defendant will not be permitted to withdraw his plea.”
United States v. Frankel, No. 06-1752-cr (2d Cir. December 14, 2009) (Newman, Winter, Cabranes, CJJ) (per curiam) attempts to sort out the mess created when the court, in a series of 2008 orders, first vacated the appointment of Frankel’s third court-appointed counsel – due to Frankel’s serious misconduct – then dismissed the appeal when he failed to file a timely pro se brief. On remand from the Supreme Court, the circuit did not conclusively rule on whether the right to counsel must be affirmatively waived, and can never be forfeited by misconduct. But the court agreed that the order vacating the appointment of counsel was a sanction, and should therefore have been preceded by notice to Frankel and an opportunity to respond, and that the order dismissing the appeal was tainted by the improper order vacating the appointment of counsel. Accordingly, the court reappointed counsel, directed her to obtain any needed transcripts and file a brief. The court also cautioned Frankel that if he does not want this attorney, he will be required to proceed pro se, and that further misconduct could lead to the imposition of sanctions, which might include dismissal of his appeal.