April 26, 2005
No Booker "Sea Change" Exception to Broad Waivers of Right to Appeal Sentence
One of the ways in which the government seeks to ensure that a plea bargain is the end of a case is to demand a broad waiver of the right to appeal the sentence so long as it meets certain criteria, one of which is that the sentence be within the Guidelines range or below the statutory maximum. The statutory maximum cap was the sole sentencing limitation in a plea agreement at issue in the Seventh Circuit's decision in United States v. Bownes (here), a case in which the defendant entered a guilty plea to mail fraud for engaging in "land flips" involving low income property. and the defendant argued that he did not knowingly waive the right to appeal because Booker effected a "sea change" in sentencing law and therefore he should be permitted to seek a resentencing under the now-advisory Guidelines. The court, per Judge Posner, rejected that argument:
Bownes argues that Booker is special because it brought about a “sea change” in the law. The identical argument was rejected, rightly in our view, in the Bradley and Killgo cases that we cited in the preceding paragraph. It is true that Booker has had a tremendous impact because it has affected many thousands of sentences, but it is no more, and indeed less, of a “sea change” than numerous other legal innovations scattered across the volumes of the United States Reports and the Federal Reporter. And anyway a “sea change” exception to the rule that an unqualified appeal waiver is to be enforced as written would be hopelessly vague.
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