US v. Ashford: Ashford pleaded guilty to a drug offense pursuant to a plea agreement in which he waived his “right to contest either the conviction or the sentence in any direct appeal.” He was sentenced to 168 months. After sentence was imposed, the district court realized it hadn’t called on Ashford to allocute. Ashford spoke to the court, after which the district court said: “All right. Well, I believe I have announced my sentence.”
Ashford directed his attorney to appeal, which led to counsel filing an Anders brief raising only the possibility of ineffective assistance of counsel with regards to a Guideline enhancement. In response, the Government filed a letter stating that it didn’t intend to file a brief unless the court ordered it to do so. Ashford also filed a pro se brief, to which the Government didn’t respond. Months later, the Fourth Circuit sua sponte ordered briefing on whether Ashford had been denied his right to allocate. In its supplemental brief, the Government, for the first time, invoked the appeal waiver in the plea agreement.
The Fourth Circuit dismissed Ashford’s appeal. At issue was whether the Government was required to invoke the waiver in some fashion prior to its brief filed in response to the court’s supplemental briefing order. The court reiterated that the Government was not required to do so when the Anders brief was filed, as “we have consistently told the Government that it need not respond to Anders briefing unless we order otherwise.” In addition, the deadline for filing any brief by the Government under the initial briefing order had passed when Ashford filed his pro se brief (which did raise issues that implicated the waiver). The Government was not required to file a “rote response or letter reserving its right to assert an appeal waiver.”
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