A New Wave Washes Over Appellate Waivers and Related Cases

Interesting decision yesterday in United States v. Atkinson, No. 07–2144 (6th Cir. Dec. 3, 2009). It is unpublished, but it is worth a look. Panel of Judges Guy, Clay, and White.

Background:
* Defendant caught with drugs and gun.
* Charged with being a felon in possession, possession with an intent to distribute crack, and a § 924(c).
* Defendant was going to plead guilty with a plea agreement that dismissed the drug charge. Decided not to do so and requested new counsel.
* Defendant did plead a month later with new counsel.

Sentencing and Appellate Waiver:
* GL determination left open in second plea agreement.
* This second plea agreement did contain an appellate waiver. Pretty broad—waived right to appeal "any sentence which [wa]s at or below the maximum of the guideline range as determined by the Court." Also waived right to appeal sentence and manner in which it was determined in any collateral attack.
* PSIR scored the defendant as a career offender. Defendant objected based on his prior convictions being related. District Court rejected this argument, finding the offenses were not consolidated for trial/sentencing. (This case was pre-2007 amendments to Section 4A1.2(a)(2).)
* GL range of 262 to 327 months. OL 34, CH VI.
* Sentence of 240 months total.

Appeal:
* Defendant challenged his sentence.
* Government moved to dismiss the appeal because of the appellate waiver.
* Court concludes that under these circumstance, it could not be satisfied that the appellate waiver was knowing and voluntary. Circumstances included: uncertainty about whether the defendant would plead guilty, recent change in counsel, only passing reference to career-offender issue at time of plea.
* Regarding actual consolidation issue, Court found it was close call and that consideration of 2007 amendment might have led to different result in the District Court because of the District Court’s discretion. The Court so concluded even though it noted that the amendment would likely not be found to be retroactive.
* Case remanded.