Saturday, March 03, 2007

Standard Appellate Waiver Does Not Bar Appeal of District Court's Decision re Concurrency

United States v. Stearns, Docket No. 05-2550-cr (2d Cir. Mar. 2, 2007) (Calabresi, Parker, Hall) (per curiam): This short opinion principally confirms, as a general matter, that appellate waivers must be narrowly construed (and in the defendant's favor) and, more specifically, that a standard appellate waiver (wherein the defendant "waives the right to appeal ... any sentence imposed by the Court which is the same as or less than" a specific number of months or years) does not bar an appellate challenge to the district court's decision to run the federal sentence only partially concurrent to an undischarged state sentence. Op. 4-5. The Circuit had previously held the same in United States v. Williams, 260 F.3d 160, 164-65 (2d Cir. 2001), and United States v. Brown, 232 F.3d 44, 48 (2d Cir. 2000).

Moreover, for purposes of determining the scope of the appellate waiver, it did not matter that the district court told the defendant during the Rule 11 colloquy that it had the authority to impose a concurrent, partially concurrent, or consecutive sentence. As the Circuit explains,"construing the agreement narrowly and in Stearns' favor, [as we must], we believe that merely acknowledging the existence of that authority is not sufficient to constitute a waiver of the right to appeal the manner in which it has been exercised." Op. 5.

Of course, this is only a pyrrhic victory for Mr. Stearns. The Circuit -- no surprise -- concludes that the district court did not abuse its discretion to impose a partially concurrent sentence. Op. 4-5.


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