Tuesday, January 13, 2009

Appeal Waiver Precludes Booker Relief

US v. Linder: A cautionary tale on the long arm of appeal waivers. Linder pleaded guilty to a drug charge with a plea agreement that included a waiver of any appellate rights. The guilty plea was entered before Blakely, but sentencing was delayed until the Fourth had incorrectly concluded that Blakely didn't apply to the Guidelines. Consistent with the Fourth's decision in Hammoud, the district court rejected Linder's Sixth Amendment objections to the Guidelines calculations and imposed a sentence of 262 months and announced an alternative sentence of only 120 months.

Linder appealed, seeking relief under Booker, but the Fourth rejected his arguments due to the appellate waiver. Linder then filed a motion under 28 USC 2255 (that right had not been waived), asking the district court to impose the alternate sentence. The district court denied to do so, concluding that Booker did not apply to Linder's case.

On appeal, the Fourth Circuit affirmed the district court, though on different reasoning. The court concluded that Booker did apply to Linder's case, because it was not "final" until after Booker was decided. The appeal waiver provisions of the plea did not change the fact that Linder's appeal was pending when the Supreme Court acted. Nonetheless, applying Shea v. Louisiana, 470 US 51 (1985), the court concluded that the appeal waiver provision that required denying the direct appeal continued to foreclose relief. In other words, because the issue was properly dealt with on direct appeal, it could not be raised again in the 2255 proceeding.

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