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Circuit Holds Appeal Waivers in Plea Agreements Must Be Backed By Consideration

In United States v. Lutchman, No. 17-291 (2d Cir. Dec. 6, 2018) (Newman, Jacobs, Pooler), the Second Circuit exercised appellate jurisdiction over defendant’s challenge to his sentence, even though his plea agreement contained an appellate waiver.  The Court concluded that the defendant’s appellate waiver in his plea agreement was not supported by consideration, and thus did not bar defendant’s challenge to his sentence on appeal.  The Court addressed defendant’s arguments on the merits, affirming defendant’s sentence.

The facts of the case are unusual—the defendant promised not to appeal any sentence equal to or below the statutory maximum—and the decision not to enforce a plea agreement’s appellate waiver on this basis is also unusual.  The Circuit scrutinized the benefits provided in the plea agreement in exchange for the appeal waiver and decided to hear the sentencing appeal on the merits.  The Second Circuit seems to be moving in a consistent direction with New York state appellate courts (as discussed below), and may be willing to look with greater skepticism at appeal waivers, a type of provision that some commentators view as unfair to defendants. 

United States v. Lutchman

Defendant pleaded guilty to conspiracy to provide material support to a foreign terrorist organization in violation of 18 U.S.C. § 2339B(a)(1).  In the plea agreement, defendant waived indictment, pleaded guilty to the statutory maximum sentence, and waived his right to appeal any sentence less than or equal to the statutory maximum.  The district court imposed the statutory maximum, a sentence of 240 months imprisonment and 50 years of supervised release.

The Court concluded that defendant received nothing in exchange for waiving his right to appeal.  Although the government agreed to reduce defendant’s Sentencing Guidelines range based on his acceptance of responsibility and his timely guilty plea, the Court concluded that these reductions were available to defendant regardless of whether he waived his right to appeal.  The Court further concluded that the “reductions” resulting from the plea agreement had no practical effect (since he received the statutory maximum), and that the government otherwise failed to point to additional counts that could have been proven at a trial.

The Court, however, declined to remand or find that the plea agreement was unenforceable.  Notably, defendant did not argue that the plea was unenforceable.  Instead, the Court severed the appellate waiver from the plea agreement, and considered defendant’s sentencing challenge on the merits.  Had the Court declared the entire agreement unenforceable, presumably the government would not have been bound by its terms.

As to defendant’s sentence, the Court concluded that defendant’s sentence was not procedurally or substantively unreasonable.  Defendant’s procedural reasonableness challenge was largely based on law enforcement’s involvement in the criminal conspiracy.  The Court explained that law enforcement involvement in the conspiracy did not affect defendant’s free will in the conspiracy, or defendant’s efforts to achieve the conspiracy’s success.  The district court thus did not abuse its discretion in determining that the sentence reduction was inapplicable.  The Court further concluded that defendant’s sentence was not substantively unreasonable, because the district court considered defendant’s history of mental health issues in reaching its sentencing determination.  The district court therefore did not abuse its discretion in imposing the sentence.

Voluntary Appeal Waivers in State Court

Although the Lutchman decision focused on the consideration given to a defendant in exchange for waiving his right to appeal, New York State courts are currently grappling with a related appeal waiver problem—the voluntariness of standard appeal waivers in plea agreements.  In practice, state prosecutors often demand appeal waivers as a condition of a plea bargain.  Some New York State Appellate Division judges have recognized that defendants often do not “voluntarily” waive their right to appeal in plea agreements but rather are compelled to do so.  To be sure, in some cases the defendant receives a benefit in exchange for their appeal waiver, with respect to the sentence or charges, but this is not always the case.

The New York Appellate Division, Second Department recently handed down a decision that cautions New York trial judges to take care that criminal defendants knowingly and intelligently waive their right to appeal.[1]  The focus of the Appellate Division’s frustration seems to derive less from the consideration afforded to a criminal defendant entering into a plea, but from deficient plea colloquies that do not ensure defendants understand what is at stake in their plea agreements.[2]  Defendants should understand that they are giving up their appellate right.  This is something that must be part of a guilty plea proceeding in federal court.  See Fed. R. Crim. P. 11(b)(1)(N) (“[T]he court must inform the defendant of, and determine that the defendant understands . . . the terms of any plea-agreement provision waiving the right to appeal or to collaterally attack the sentence.”).

Presiding Justice Rolando Acosta explained that the First Department’s practice is to decide New York excessive sentence challenges on the merits, often declining to address the validity of an appeal waiver in a plea agreement.[3]  According to the Presiding Justice, appeal waivers are only considered if the Court concludes the defendant’s sentence is harsh and excessive, and the People respond that the defendant waived the right to appeal in the plea agreement.  Presiding Justice Acosta explains that this method of resolving excessive sentence challenges on the merits, as opposed to considering the validity of an appeal waiver, is a way in which the courts can preserve both judicial and prosecutorial resources.


This recent focus on appeal waivers in plea agreements teaches two lessons:  (1) defendants should receive something of value for entering into a plea agreement in which they waive their right to appeal; and (2) defendants should be aware of what is at stake when they are waiving their right to appeal.  Both state and federal courts have now reminded practitioners that boilerplate appeal waivers in plea agreements, and the plea colloquies that follow, will be scrutinized.  When appropriate, the courts will look past plea waivers and reach the merits of a sentencing challenge.  Even where—as in Lutchman—the sentence is affirmed, the system will benefit from having additional appellate scrutiny.  Defense lawyers also should be mindful of the fact that in some cases there is no reason to enter into a plea agreement, as they may force the defendant to give up appellate or sentencing rights in exchange for no actual benefit.  It will be interesting to see if the type of analysis in Lutchman is used by the Circuit in future cases in which defendants challenge their sentences notwithstanding the terms of a plea agreement. 

Finally, the Lutchman decision relates to a case pending before the Supreme Court, Garza v. Idaho, in which the court will determine whether to use a “presumption of prejudice” when a criminal defendant tells his lawyer to file a notice of appeal, but where no notice is filed because the attorney believed it was barred by the plea agreement.  If courts are willing to scrutinize the terms of plea agreements, as in Lutchman, it makes it all the more important that every defendant who wishes to file an appeal is given the opportunity to do so. 

-By Danielle Quinn and Harry Sandick

[1] People v. Batista, 2018 N.Y. Slip Op. 07445, 2018 N.Y. App. Div. LEXIS 7463 (2d Dep’t Nov. 7, 2018).

[2] Andrew Denney, NY Appeals Judges Say Trial Courts Should Act to Quell Appeal Waiver Challenges, New York Law Journal (Nov. 9, 2018). 

[3] Justice Rolando Acosta, First Department Takes Different Approach to Appeal Waivers, New York Law Journal (Dec. 7, 2018).