Friday, August 18, 2006

Appeal of Restitution Calculation Barred By Waiver of "Sentence Imposed"

US v. Cohen: Cohen pleaded guilty to mail fraud and conspiracy to commit health care fraud. As part of his plea agreement, he waived his right to appeal "whatever sentence is imposed." Nonetheless, Cohen appealed, challenging the amount of loss calculation under the Guidelines and for restitution purposes. He argued that the appeal waiver was not valid and that even if it was, the restitution issue was outside the scope of the waiver and could be considered.

The Fourth Circuit rejected Cohen's arguments and dismissed the appeal based on the waiver. First, it held that the record did not show that Cohen's ADHD prevented him from entering a knowing and voluntary waiver of appellate rights. Second, the court held that the Government did not violate the agreement by arguing for the amount of loss it did as there was nothing in the written agreement committing the Government to a certain loss figure. Finally, the court held that Cohen was not in an unequal bargaining position with the Government during the making of the agreement. As to the restitution loss calculation, the court rejected Cohen's argument that restitution was not part of the "sentence imposed" and was therefore outside the scope of the waiver. However, the court did entertain (and reject) an argument that the district court's restitution order exceeded the scope of its statutory authority.

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