Sunday, January 02, 2011

Waiving Bye-Bye

United States v. Arevalo, No. 09-0576-cr (2d Cir. December 21, 2010) (Jacobs, Kearse, Straub, CJJ)

Defendant Manuel Vigil pled guilty to conspiracy to commit murder in aid of racketeering and using a firearm in connection with a crime of violence. He did so pursuant to a plea agreement that contained an appeal waiver - he promised not to “file an appeal or otherwise challenge” his conviction or sentence if the district court imposed a sentence of 195 months’ imprisonment or less.

When he was sentenced, although Vigil disputed certain facts in the presentence report, the district court did not resolve any of the disputes. It ultimately sentenced him to 157 months’ imprisonment.

Despite the waiver, Vigil filed a pro se notice of appeal. His attorney then filed an Anders brief, but the circuit bounced it. After counsel repeatedly ignored the court’s orders to cure the Anders brief, the court appointed new appellate counsel, who argued that the district court violated Rule 32(i)(3) by not resolving the factual disputes, and that this was not covered by the appellate waiver.

That Rule requires the district court to either “rule on” or deem immaterial “any” dispute relating to the presentence report. The Second Circuit had not previously decided whether an appellate waiver covered Rule 32 errors. Here, however, it held that the waiver applied. The language of the waiver that Vigil agreed to “plainly includes a waiver of his right to claim errors arising out of the ... crafting of Vigil’s sentence.”

Nor did the Rule 32 error void the appellate waiver, even though a defendant’s interest in the accuracy of the presentence report continues after sentence is imposed. The harm associated with potential errors in the report - primarily relating to decisions made by the Bureau of Prisons based on the report’s contents - does not amount to a due process violation, unlike, say, a district court’s reliance on such erroneous information.

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