No Dismissal Due to Tardy Government Request

US v. Kemp: Kemp was charged with nine counts related to the sexual abuse of his children, eventually pleading guilty to s single count of aggravated sexual abuse. As part of the plea agreement Kemp agreed to “a broad appeal waiver” waiving his right to appeal any sentence so long as it was within the advisory Guideline range. That range was 360 months to life in prison. The district court imposed a sentence of life, followed by a lifetime of supervised release (neat trick!).

Kemp filed a notice of appeal that was untimely. In the Fourth Circuit’s order setting a briefing schedule it specifically informed the Government that failure to file a motion to dismiss by the deadline for filing its response brief “may result in waiver of defenses.” Kemp’s appellate counsel filed an Anders brief and the Government, per the order, filed a motion to dismiss based only on the appeal waiver in the plea agreement. After reviewing the case, the Fourth Circuit ordered supplementary briefing related to the validity of Kemp’s guilty plea and Rogers/Singletary error with regards to supervised release conditions. The Government’s brief addressed both the merits and argued that the appeal should be dismissed for being untimely.

The Fourth Circuit vacated Kemp’s sentence, but affirmed his conviction. In doing so, it denied the Government’s motion to dismiss based on untimeliness, noting that the Government had complied with the initial briefing schedule when it filed a motion to dismiss, but because that was limited to the appeal waiver it resulted in the waiver by the Government of the argument that the appeal was untimely. On the merits, the court held that while the guilty plea colloquy was deficient, it was not so deficient as to undermine its voluntariness. On the supervised release conditions, however, the court held that some were erroneously imposed only in writing after the sentencing hearing, a plain error that required remand for a full resentencing.

In a concurrence, Judge Quattlebaum argued that the court should reconsider Rogers and Singletary because their “internal reasoning” was “inconsistent and conflicts with our precedent concerning errors in a written judgment” and that the full sentencing remedy is one which “we do not consistently employ.”