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D.C. Circuit Holds Generic Appeal Waiver Does Not Bar IAC Claim During Sentencing

by Dale Chappell

The U.S. Court of Appeals for the D.C. Circuit ruled that a “generic appeal waiver does not affect a defendant’s ability to appeal his sentence on yet-to-arise ineffective-assistance-of-counsel grounds.”

An unnamed defendant in a sealed case signed a plea agreement, on counsel’s advice, that included a generic appeal wavier stating that the defendant “waives any and all appeals and collateral attacks in this case and agrees that this case will become final once he has been sentenced.” However, the waiver did not explicitly address his right to appeal on ineffective assistance of counsel (“IAC”) grounds.

Notwithstanding the generic waiver, the defendant appealed, arguing that counsel was ineffective during sentencing. The Government opposed, arguing the waiver barred any appeal. The Court agreed to hear the appeal despite the waiver.

A defendant can waive in a plea agreement the right to appeal a sentence that has not yet been imposed, as long as the decision to do so is knowing, intelligent, and voluntary. United States v. Guillen, 561 F.3d 527 (D.C. Cir. 2009). Generally, “an allegation that the sentencing judge misapplied the Sentencing Guidelines or abused his or her discretion is not subject to appeal in the face of a valid appeal waiver.” United States v. Adams, 780 F.3d 1182 (D.C. Cir. 2015).

To be knowing, intelligent, and voluntary, a defendant must be advised by the court what is being waived because general or generic waivers do not bar every conceivable claim. Here, the defendant was not advised by the court what was being waived; instead, the court simply read the waiver to the defendant at the plea hearing.

The question before the D.C. Circuit, then, was whether the generic waiver language gave the defendant sufficient notice of what was being waived. The Court determined it did not.

“We cannot conclude that a defendant who executes a generic appeal waiver ‘is aware of and understands the risk[]’ that, by doing so, she waives any ability to appeal if her counsel later provides constitutionally ineffective assistance at sentencing,” the Court said. The Court explained that a defendant retains his or her Sixth Amendment right to counsel at the upcoming sentencing, and unlike other rights, the defendant’s “right to counsel can practically be vindicated only through an appeal or collateral proceeding.” The right to counsel “at sentencing means the right to effective counsel,” according to the Court. For purposes of the Sixth Amendment, ineffective counsel is no counsel at all.

The D.C. Circuit announced its adoption of the following rule: “a generic appeal waiver does not reach claims of ineffective assistance of counsel at sentencing.”

The Court then observed that the Fifth, Tenth, and Eleventh Circuits have taken the opposite position from the rule just announced. However, the Court opined that those Circuits’ view on the issue “might be of limited practical significance on a prospective basis” because the Department of Justice recently issued a memorandum to all federal prosecutors instructing them not to seek waiver of claims of IAC, whether on direct appeal or collateral attack, in plea agreements.

The defendant raised at least a “colorable claim” of IAC whose merits cannot be conclusively determined based on the record. Accordingly, the Court remanded the case to the district court with instructions to “fully consider the claim along with the other ineffective assistance claims raised” by the defendant. See: In re Sealed Case, 2018 U.S. App. LEXIS 23878 (D.C. Cir. 2018). 

 

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