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First Circuit Holds Appeal Not Barred by Plea Agreement Waiver Provision When Sentence Exceeds Agreement

by David Reutter

The United States Court of Appeals for the First Circuit held a plea agreement’s appellate waiver provision did not bar an appeal where the district court imposed a home confinement provision that was not set forth in the agreement.

Jose Luis Lopez-Pastrana entered into a plea agreement that dismissed two of four counts in exchange for guilty pleas for possession with intent to distribute marijuana and possession of a firearm in furtherance of a drug trafficking crime. The agreement set forth a non-binding recommendation for the court “to impose a sentence at the lower end of the guidelines,” which was zero to six months and statutorily mandated sixty months, respectively.

At sentencing, the court took into consideration that Lopez-Pastrana had “a severe pulmonary illness and limited life expectancy.” The district court then imposed a zero-month sentence on the drug charge and sixty months on the weapons charge. It also imposed concurrent supervised release terms of two and five years. “It then announced the conditions of release, including a twelve-month period of home confinement that would be monitored with an electronic device,” the First Circuit noted.

A colloquy then ensued between the district court and defense counsel about the home confinement. The court said it anticipated Lopez-Pastrana would “applaud this conviction” because it enabled him to obtain medical treatment at the government’s expense during the home treatment. After some discussion, defense counsel said, “We’ll take it.”

Lopez-Pastrana, however, appealed and challenged the 12-month term of home confinement. The Government argued that an appeal was waived as part of the plea agreement. The First Circuit disagreed.

It had “no difficulty concluding that the waiver provision in Lopez-Pastrana’s plea agreement may not be construed to bar his challenge to a term of home confinement that is twice as long as the high end of the applicable imprisonment range, where the parties recommended a sentence at the low end of the range.”

The First Circuit noted “the sentencing colloquy … indicates that the district court imposed the twelve-month period of home confinement as a substitute for a six-month term of incarceration.” It said that “even discounting by fifty percent the impact of home confinement compared to incarceration … the result similarly exceeds the agreed-upon recommendation.”

An important point in the case was that the sentence exceeded the agreement because home confinement can only be imposed as a substitute for incarceration, which is why Lopez-Pastrana would have received government-paid medical care during home confinement.

Since the sentence imposed exceeded the parties’ agreement, the First Circuit held “Lopez-Pastrana’s sentencing appeal is not barred by the plea agreement appellate waiver provision.”

Accordingly, the First Circuit vacated the home confinement portion of the sentence and remanded the case to the district court for resentencing consistent with this opinion. See: United States v. Lopez-Pastrana, 889 F.3d 13 (1st Cir. 2018). 

 

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