Implicit Acceptance of Plea Agreement Possible, Gives Effect to Appeal Waiver

US v. Soloff: Soloff agreed to plead guilty to the receipt of child pornography as part of a plea agreement in which he agreed to waive certain appellate rights. Both a magistrate judge and district court judge provisionally approved the plea agreement pending review of the Presentencing Investigation Report. At sentencing, there were no objections to the Guideline calculations and the district court ultimately imposed a sentence at the bottom of the advisory Guideline range. While noting the “existence of the plea agreement” and the appeal waiver and imposing restitution “in accordance with the terms and conditions of Defendant’s plea agreement,” it did not specifically adopt the plea agreement. 

Soloff challenged his sentence on appeal. The Government moved to dismiss the appeal, arguing that the waiver provision of the plea agreement applied. The Fourth Circuit agreed and dismissed the appeal. There was no dispute that the issues raised by Soloff on appeal fell within the waiver’s scope, only whether the waiver was binding. The court rejected Soloff’s argument that the waiver never gained effect because the district court failed to adopt it, holding that such adoption can be implicit, rather than explicit. All that is needed is evidence that the district court acted in accordance with the plea agreement, as it did here. Still, explicit adoption is the best practice.