Tuesday, December 13, 2005

A Good Decision on Mootness and Appeal Waivers

United States v. Ali Hamdi, Docket No. 03-1307-cr (2d Cir. Dec. 12, 2005) (Feinberg, Winter, Sotomayor): This decision -- yet another in the criminal realm by Judge Sotomayor -- has two principal holdings. First, the fact the defendant has completed his sentence and been deported does not moot the instant challenge to the length of his sentence, imposed pre-Blakely (and thus pre-Booker), because the length of the sentence "probably" would affect Hamdi's ability, at a future date, to enter the U.S. on a non-immigrant visa. See Op. at 4-10. Second, a simple declarative statement in a plea agreement that the "[t]he defendant's sentence is governed by the United States Sentencing Guidelines" does not prohibit the defendant from raising on appeal a claim that his sentence, imposed under the then-mandatory Guidelines regime, is invalid in light of Booker. See id. at 10-20. We will focus on the second issue.

Hamdi's plea agreement did contain an explicit appeal waiver provision barring him from appealing his conviction or sentence "in the event that the Court imposes a term of imprisonment of 21 months or below." Op. at 11. However, this provision did not come into play because the district court sentenced Hamdi to 24 months' imprisonment.

Undaunted, the Government grasped at an earlier part of the plea agreement -- Paragraph 2 -- which states declaratively that "The defendant's sentence is governed by the ... Sentencing Guidelines." Op. at 11. The Government argued that because the entire plea agreement began with the prefatory statement that the parties "agree to the following," and because Paragraph 2 is part of that "following," Hamdi has agreed that the Guidelines govern his sentence and thus cannot claim on appeal that, in light of Booker, the Guidelines do not govern his sentence.

The Court rejected this argument after closely parsing the wording and structure of the agreement. It concluded that despite the prefatory statement, not everything that followed constituted "a promise by one party or the other." Op. at 14. Rather, while some parts of the agreement are "covenants or promises to perform" by the parties, other parts are simply descriptive and create no obligations on either party. The "purely declarative" sentence in Paragraph 2 falls in the latter category, Op. at 15, as it "contains no language that even arguably creates on obligation on Hamdi." Op. at 16.

"Read as a whole," the Court concluded, "the paragraph has no apparent purpose other than to comply with our suggestion in Pimentel that the government provide a defendant in Hamdi's position with an informed estimate of his sentencing exposure under the Guidelines." Id. And even if there were any ambiguity on this point, the Court futher noted, "well-settled principles of construction of plea agreements . . . [require that] we resolve this ambiguity in Hamdi's favor and decline to read the sentence as a waiver of appeal rights with respect to Booker procedural error." Op. at 17.

Unfortunately, the decision goes to some length to distinguish itself from -- and thus affirms the continuing validity of -- the Court's earlier misguided decisions in Morgan and Haynes (holding that an appeal waiver entered into before Blakely bars a post-Booker challenge on appeal). See Op. at 18-21. As the Court explains, "our holding [here] turns on an interpretation of the plea agreement in light of the parties' reasonable understanding at the time the agreement was made, and not on the extent to which Hamdi could have anticipated subsequent changes in the law." Op. at 18. Morgan's "rule that an explicit waiver of appeal rights include even those rights not yet recognized at the time the parties entered into the plea agreement" is not disturbed by this case, which concludes only that "an arguably ambiguous plea provision not denominated as a waiver, and which would not have been understood as a waiver by the parties at the time they entered into the agreement, may not be so transformed ex post merely because the language logically relates to the newly recognized right and could plausibly be interpreted, in isolation and in light of current understanding, as a waiver of that right." Op. at 19.

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