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A Generic Appeal Waiver Doesn’t Preclude Claim of Ineffective Assistance of Counsel at Sentencing—In re Sealed Case, _ F.3d _ (D.C. Circuit, No. 16-3005 (Aug. 17, 2018).

Suppose a criminal defendant agrees to plead guilty and to waive the right to take an appeal or seek collateral review after being sentenced. Can the defendant nonetheless assert a claim of ineffective assistance at sentencing? A unanimous panel decision (Judges Srinivasan, Wilkins & Sentelle) held that such a claim may be raised—at least where the defendant executed a “generic” waiver that didn’t preclude a later-asserted claim of ineffectiveness.

The appellant pleaded guilty under such a generic plea agreement to one count of conspiracy to distribute five kilograms or more of cocaine on board an aircraft registered in the United States and one count of conspiracy to distribute and possess with intent to distribute 1,000 kilograms or more of marijuana. Unhappy with the sentence, Appellant claimed on direct appeal that his counsel below had failed to push for a minor role adjustment in the Sentencing Guidelines calculations and had rendered ineffective assistance. The Government was unsympathetic and urged that the waiver of appellate rights in the plea agreement precluded any assertion of ineffective assistance. (Slip Op. at 2-4).

The Court of Appeals looked first to United States v. Guillen, 561 F.3d 527, 529-30 (D.C. Cir. 2009), which upheld the validity of so-called “anticipatory waivers,” under which a defendant can validly waive her right to appeal a sentence that has not yet been imposed, as long as her decision is “knowing, intelligent, and voluntary.” (Slip Op. at 4). “As a general matter,” the Court of Appeals pointed out, ‘“an allegation that the sentencing judge misapplied the Sentencing Guidelines or abused his or her discretio is not subject to appeal in the face of a valid appeal waiver.’” (Slip Op. at 4-5) (quoting United States v. Adams, 780 F.3d 1182, 1184 -85 (D.C. Cir. 2015) (quoting United States v. Andis, 333 F.3d 886, 892 (8th Cir.  2003) (en   banc))). Applying those principles, Judge Srinivasan wrote, the Circuit has held that an appeal waiver barred a  defendant from appealing her sentence on the grounds that the district court: imposed a substantively unreasonable sentence, erroneously declined  to permit  the  defendant  to  introduce  certain  evidence at  sentencing  or  in  limiting  cross-examination  of  the  government’s  sentencing  witnesses,  or abused  its  discretion in denying  a  downward  variance from the sentencing guidelines range. (Slip Op. at 5) (citing Adams, 780 F.3d at 1184-85, and United States v. Ortega-Hernandez, 804 F.3d 447, 451 (D.C. Cir. 2015)).

But this result is not always what happens—a waiver would not foreclose appeals based on claims that the sentence exceeded the statutory maximum or the sentencing judge acted on the basis of invidiously discriminatory motives. Nor would a waiver bar an appeal if the waiver “‘only arguably or ambiguously forecloses his claims.’” (Slip Op. at 6) (quoting United States v. Hunt, 843 F.3d 1022, 1027 (D.C. Cir. 2016)). As the Court explained: “The upshot of our decisions is that a general appeal waiver will be     understood to preclude appealing a sentence on a host of grounds.  But a generic waiver of appeal rights will not bar every appeal concerning a defendant’s sentence.   The central question in that regard is whether the defendant is “aware of and understands the  risks  involved  in  his  decision,” Guillen, 561F.3d  at  529,  with  any  ambiguity  about  the  scope  of  his  waiver construed in his favor, Hunt, 843 F.3d at 1027. (Slip Op. at 6) (emphasis original).

“The question, then, is whether the generic language of the appeal waiver, standing alone, gave appellant the requisite awareness and understanding of ‘the risks involved,’ Guillen, 561 F.3d at 529—i.e., that if he were to receive constitutionally ineffective assistance of counsel at sentencing, he would be unable to appeal or seek collateral review on that ground. (Id. at 7).

The Government, as one might expect, argued that the waiver sufficed to bar any appeal. Looking to Martinez v. Ryan, 566 U.S. 1, 12 (2012) and United States v. Taylor, 139 F.3d 924, 931 (D.C. Cir. 1998), the panel rejected the prosecution’s claims. The court emphasized that “our general duty to construe ambiguities in an appeal waiver in the defendant’s favor is especially salient in the context of claims alleging ineffective assistance of counsel.  Because ‘[t]he right to the effective assistance of counsel at trial is a bedrock principle in our justice system,’ a person’s “inability to present a claim of trial error is of particular concern when the claim is one of ineffective assistance of counsel.’” Slip Op. at 7). And “[t]hat understanding about ‘the effective assistance of counsel at trial’ is equally true about ineffective assistance at sentencing.” (Id).

The question thus having been posed, the panel wrote that “we cannot conclude that a defendant who executes a generic appeal waiver “is aware of and understands the risk[]” that, by doing so, she waives any ability to appeal if her counsel later    provides    constitutionally    ineffective    assistance    at    sentencing.” (Slip Op. at 8) (citing Guillen, 561   F.3d   at   529). Three reasons drove this decision.

First, “a defendant’s right to counsel’s assistance at sentencing necessarily means the right to effective counsel.  After all, ineffective counsel is no counsel at all, as far as the Sixth Amendment is concerned.”(Slip Op. at 9) (citing Strickland v. Washington, 466  U.S.  668, 687 (1984)).

Second, “a defendant can practically vindicate the right to the effective assistance of counsel at sentencing only through an appeal or collateral proceeding.” On the other hand, “[c]ounsel cannot be expected to raise such an ineffective-assistance claim in the sentencing court itself:  an attorney, to say the least, will be ‘unlikely to raise an ineffective-assistance claim against himself.’” (Slip Op. at 9) (quoting Massaro v.  United States, 538 U.S. 500, 502-03 (2003)).

Third, “the defendant herself [is not] well positioned to identify her counsel’s deficient performance and bring it to the sentencing court’s attention.  We have recognized that counsel fulfills an essential function at sentencing by navigating the sentencing guidelines and presenting the various considerations that may drive the court’s sentencing determination.” (Slip Op.at 9) (citing United States v. Soto, 132 F.3d 56, 59 (D.C. Cir. 1997)).

Pointing out that “the ability to bring an ineffective-assistance claim on collateral  review  or  on  appeal  (with  the  possibility of a remand for factual development) is essential to vindicating a defendant’s right to counsel at sentencing,” the Court of Appeals observed that “[i]t follows that a waiver of the right to appeal and collateral review, if construed to encompassing ineffective-assistance-of-counsel claims, acts essentially as a waiver of the right to counsel at sentencing.” (Slip Op. at 10). “In short,” as Judge Srinivasan wrote, “construing a generic appeal waiver to extend to ineffective-assistance-of-counsel claims would be inconsistent with our understanding that a defendant must be ‘aware of and understand[] the risks involved in his decision.’” (Slip Op. at 11) (quoting Guillen, 561 F.3d at 529). Indeed, he perhaps wryly commented, “[a] contrary conclusion would mean that the defendant retained her right  to counsel  at  sentencing  while  nonetheless giving up her ability to preserve that right.  We do not believe that a generic appeal waiver brings about that result, much less that it unambiguously does so.” (Slip Op. at 11) (citing Hunt, 843 F.3d at 1027).

Notably, the Court of Appeals took pains to state that three other courts of appeals have reached contrary conclusions and one appears to have reached a result similar to that of the D.C. Circuit. However, the panel emphasized that the Department of Justice has issued an internal directive under which it will “’no longer seek in plea  agreements   to   have   a   defendant   waive   claims   of   ineffective assistance of counsel whether those claims are made on collateral attack or, when permitted by circuit law, made on direct appeal.’” (Slip Op. at 12) (citation omitted).

The Government refused to let it go, arguing that defense counsel was not ineffective; allegedly counsel had urged a minor role and in any event the evidence (in the Government’s eyes) didn’t match up anyway, such that the defendant would not have attained a minor role. The Court of Appeals disagreed, finding that defense counsel’s position had been advanced a year before sentencing and that there was a possibility that appellant would   have   received   a   lower   sentence, which was deemed sufficient evidence of prejudice to warrant a  remand.(Slip Op. at 14-15) (citing United  States  v.  Rashad, 331 F.3d 908, 911-12 (D.C. Cir. 2003)).

  • August of 2018 has been quite the banner month for Carmen Hernandez. She scored back-to-back shutouts of the Government’s game, both in decisions that achieved circuit splits.
  • Steve Leckar, of counsel to Kalbian Hagerty LLP, enjoys following and occasionally arguing in the D.C. Circuit.