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The Ninth Circuit Says the District Court Can’t Negotiate An Appeal Waiver

You’ve got to feel for federal district court judges.  No one wants someone else looking over their shoulder.  Even though winning a federal criminal appeal is hard to do, district court judges still do get reversed more often than they’d like. 

Yet, when it comes to pleading guilty, only the government can ask the defendant to give up his right to plead guilty — the judge doesn’t have a role in plea negotiations. 

One district court judge in the Ninth Circuit had a novel solution — he’d just negotiate, “man to man”, his own appeal waiver with a defendant.  Which gives rise to a remarkable Ninth Circuit opinion in United States v. Gonzalez-Melchor.

The Court told the defendant he’d sentence him below the guidelines, to something like 60 or 65 months (off the low end in the 80’s), if the defendant would agree in open court not to appeal the sentence and “waste” everyone’s time with an appeal. (in fairness, the court did retract the characterization of the appeal as wasteful (which is either ironic or appropriate since the Ninth Circuit reversed and remanded)).

Despite his “man to man” pledge not to appeal, the defendant appealed anyway.  The Ninth Circuit, considering this court-negotiated appeal waiver, had little trouble finding the waiver invalid.

Sadly, the Ninth Circuit remanded for resentencing, thereby unraveling the whole deal, rather than letting the appeal go forward without the waiver.  I’m looking forward to reading the opinion in a few years where the sentencing court gives the guy low end, and he appeals saying he should have gotten what he got the first time, and is only getting a higher sentence because he wouldn’t agree to an illegal appeal waiver.

If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges or Washington DC federal criminal charges.