Appeal Waivers and Supervised Release

Federal Plea Agreements

The Devil is in the Details

Over 95% of federal defendants plead guilty, according the the Bureau of Justice Statistics. Because of Bill Otis, Law Professor and contributor to Crime and Consequences, most plea agreements now come with appeal waivers: a waiver of the defendant’s right to appeal.

On the surface, at least to this blogger, the waiver of appeal would bar any appeal of conviction and sentence (except for maybe the habeas writ from 18 U.S.C. ยง2255). What about the imposed terms or conditions of Supervised Release? Are you barred from appealing or moving to change these?

This is one of those times that it really matters where you are convicted.

The Fifth Circuit – Out of Luck

From US. v. Scallon and Findlaw’s 5th Circuit Blog:

Unlike Cooley v. United States, in which the Fifth Circuit ruled that a waiver of appeal didn’t bar a defendant from appealing if he was “sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission,” there were no altered guidelines for supervised release in Scallon’s case.

Signing a plea agreement and waiver of appeal may get your client out of jail faster — or help him avoid jail altogether — but it also means he waives his right to appeal. Make sure your plea-bargaining clients understand that “waiver of appeal” is more than just terminology; in the Fifth Circuit Court of Appeals, it’s binding on both the sentence and the supervised release terms.

The Third Circuit – Have at It

From U.S. v. Wilson and Findlaw’s 3rd Circuit Blog we get the opposite answer:

When a criminal defendant waives his right to appeal, the courts take him at his word that he is, in fact, waiving appeals.

A lot of the defendants don’t think that “waiving appeal” means what the courts think it means (Inconceivable!) and they appeal anyway. It usually doesn’t work. But a Third Circuit concluded this week that a waiver of appeal did not bar an appeal of an order modifying the terms and conditions of supervised release.

So there it is, a circuit split that helps some but not others. If you’re surprised at the 5th Circuit’s conservative reading of appeal waivers, then you must be new to the game. Anybody willing to take bets on the 9th?