Thursday, May 26, 2011

Potential New Appellate Waiver Exception

In United States v. Bafna today, the Sixth Circuit highlighted a live issue without deciding it. Bafna argued that there should be an exception to appellate waivers when the sentence amounts to a miscarriage of justice. The Sixth Circuit recognized that the First Circuit follows this approach, but held that Bafna did not present an opportunity to decide the issue, as the facts of this case did not constitute a miscarriage of justice. See United States v. Teeter, 257 F.3d 14, 25 (1st Cir. 2001). The moral of the story is that this issue is ripe for review: if you have a case with an appellate waiver, you may want to consider appealing anyway if the sentence constitutes a miscarriage of justice.

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