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)).