Appeal Waivers and Supervised Release

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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, the waiver of appeal would bar any appeal of conviction and sentence (except for some collateral habeas review writs from 18 U.S.C. §2255).

What about the imposed terms or conditions of Supervised Release? Are defendants who pleaded guilty barred from 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.

Waiver of Appeal Applies to Supervised Release Terms; Robyn Hagen, Fifth Circuit Blog, June 13, 2012

The Third Circuit – Yes and No

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

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.

Waiver of Appeal Doesn’t Apply to Terms of Release Modification, Third Circuit Blog; February 15, 2013

Despite the Wilson decision, the Third Circuit has held that early termination is ruled by the waivers in the plea agreement.

[The defendant] asked to end his term of supervised release a few years early. He offered facts and circumstances justifying his request, and highlighted the hardships imposed by restrictions on his activities. But Damon’s present desires are controlled by a past decision: his contract with the government containing the terms and conditions of his guilty plea. Because his plea agreement precludes challenges to his sentence, and because any shortening of his supervision would amount to a change in his sentence, we will affirm the decision of the District Court.

United States v. Damon, 933 F. 3d 269 (3rd Cir. 2019)

The problem with this decision is that the Third Circuit relies on a faulty legal researcher here. This case directly quotes the Fifth Circuit in the Scallon case above, but quotes it as the Sixth Circuit’s ruling. However, the Sixth Circuit has said that all attempts to change, reduce, or modify supervised release terms are not “appeals” at all.

UPDATE: In a recent case, the Sixth Circuit clarified their position on modifications of terms of supervised release in the context of appeal. In United States v. Nykoriak, No. 19-1134 (6th Cir. Apr. 27, 2020), the Sixth Circuit said that it is fine if a defendant requests early termination of supervised release, even when an appeal waiver is present in the original plea agreement. However, an appeal of any denial of that request is barred by the appeal waiver.

Requests to Modify or Terminate Supervised Release are not Appeals. Instead, they are Post-Sentence Modifications and Appeal Waivers Don’t Apply

That case law in the Sixth Circuit comes from United States v. Spinelle. This decision says that all motions under §3583(e) are “post-conviction modifications” to account for the needs of supervised release.

Spinelle did not deal with appeal waivers, but instead addressed what happens when the law mandates a 5-year sentence of supervised release and a defendant wishes to terminate it early. The logic applies, however, to appeal waivers. If a motion to terminate supervised release early is not a “resentencing” request, then an appeal waiver would not control it.

In the mind of Congress, as expressed in the plain meaning of the statutes, however, the sentencing phase is different than post-sentence modification. Prior to the Congressional amendment of 18 U.S.C. § 3583(a) in the ADAA, the district courts had the authority under 18 U.S.C. § 3583(a) to impose a term of supervised release on a defendant during sentencing at its discretion. Under 18 U.S.C. § 3583(e)(1), it also had the additional and separate discretionary authority to terminate a term of supervised release after one year of completion. When Congress subsequently amended 18 U.S.C. § 3583(a) to require that courts impose a term of supervised release on a defendant if such a term is required by statute, it only partially limited a court’s discretionary authority to impose the sentence. Congress did not alter the court’s separate authority to terminate a sentence of supervised release, under 18 U.S.C. § 3583(e)(1), if the conduct of the person and the interest of justice warranted it.

United States v. Spinelle, 41 F.3d 1056 (6th Cir. 1994)

Finding just the opposite to be true, the Fourth Circuit considers any attempt to change or modify supervised release as an “appeal”. United States v. Boone, No. 18-4829 (4th Cir. 2020).

The same reasoning in Boone is used by the 7th Circuit as well.

This issue will inevitably end up at the Supreme Court in a quite case nobody writes extensively about. Nobody, of course, except for us.

Do Appeal Waivers Matter in Your Case?

If your case doesn’t apply to one of these decisions, because you live in a different Circuit, please contact us for a free consultation to find out what your Circuit has said on the issue.

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