Tuesday, June 07, 2005
The Sixth Circuit considered an appeal waiver, from a pre-Booker plea agreement, in United States v. Luebbert, No. 03-5598, (6th Cir. 6/1/05). The waiver language indicates that the defendant "waives the right to appeal his sentence on any ground. . . other than any sentence imposed in excess of the statutory maximum, and any punishment to the extent it constitutes an upward departure from the guideline range deemed most applicable by the sentencing court." The majority opinion found that " statutory maximum" referred to the upper limit of the statute, not the maximum sentence under the sentencing guidelines. According to the majority, this interpretation is buttressed by language in the plea agreement indicating that no guideline sentence was meant to appealed, only upward departures. This appeal waiver, therefore, could not be distinguished from the waivers in Bradley, 400 F.3d 459 (6th Cir. 2005) and Yoon, 398 F.3d 802 (6th Cir. 2005), and therefore the case was dismissed. In a dissenting opinion, Judge Moore would have allowed the appeal to proceed, finding that the plea agreement did not contain an unambiguous waiver of appeal– the term "statutory maximum" could reasonably be construed different ways, as reflected in Booker; and appellate waiver provisions should be construed against the government.