Monday, February 08, 2010

Appeal Waiver Not Valid, Defendant Loses Anyway

US v. Manigan: Manigan pleaded guilty to three counts of possession of cocaine with intent to distribute, pursuant to a plea agreement in which he waive his right to all appeals and 2255 claims (save ineffective assistance of counsel and prosecutorial misconduct) - the Government waived nothing. Nonetheless, the district court at the plea hearing told Manigan that after sentencing "you . . . may have a right to appeal this sentence." At sentencing, the parties argued about whether Manigan possessed two firearms that resulted in an enhancement under USSG 2D1.1(b)(1). The district court applied the enhancement, which nevertheless did not figure in the final sentence as Manigan was a career offender. He was sentenced to 169 months in prison.

On appeal, Manigan sought to challenge the district court's use of the gun enhancement. The Government argued that Manigan waived his right to appeal that issue based on the appeal waiver in the written plea agreement. Although the language of the agreement was clear, the Fourth Circuit held that it was not applicable to Manigan because the district court incorrectly informed him of a right to appeal following sentencing. Furthermore, there was no mention made of the appeal waiver during Manigan's Rule 11 hearing. Moving on to Manigan's substantive argument, the district court affirmed the district court. Noting that the issue was not moot in light of the career offender designation because the gun enhancement had consequences in other areas (i.e., with BoP), the court held that the guns were possessed in connection with his offenses.

Judge Michael dissented on the gun enhancement issue. He argued that the majority opinion stretched the reach of the enhancement far beyond the language of the Guidelines or prior caselaw required. Because the facts were largely untested, the majority erred by using a clear error standard or review, instead of a de novo standard. He also argued that the majority approach "appears to be a green light to apply the . . . enhancement to every drug deal with a handgun in his residence" and will "practically eliminate any limitation on the scope of the provision."

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