Buyer's Remorse: Sixth Circuit Broadly Construes Appellate Waiver in Plea Agreement

When I first began representing defendants in federal criminal cases, the United States almost always agreed to permit the defendant to retain his or her right to appeal their sentence in the plea agreement.  Over the last several years, the United States has been less willing to remove all language regarding sentencing appeals from its plea agreements.  Instead, in many cases, it seeks to include language permitting the defendant to appeal a sentence only if it is outside of the maximum sentence authorized under the Sentencing Guidelines.  The Court's recent decision in United States v. Griffin is one of those cases.

In this case, Mr. Griffin pleaded guilty to conspiring to defraud the government by submitting false income tax refund claims and obtaining the fraudulent proceeds.  The plea agreement stated that Mr. Griffin waived his right to appeal his sentence, except "(a) any punishment in excess of the statutory maximum; or (b) any sentence to the extent it exceeds the maximum of the sentencing imprisonment range determined under the advisory Sentencing Guidelines in accordance with the sentencing stipulations and computations in this agreement, using the Criminal History Category found applicable by the Court."  After the District Court accepted his plea agreement, the United States Probation office prepared a PSR noting that, with an adjustment for acceptance of responsibility, Mr. Griffin's applicable Guidelines sentencing range was zero to six months.  

At sentencing, the District Court denied an adjustment for acceptance of responsibility and instead increased Mr. Griffin's base offense level by two points for obstruction of justice.  This changed his applicable Guidelines sentencing range to ten to sixteen months.  The District Court subsequently sentenced Mr. Griffin to twelve months imprisonment.  Finding that the District Court did not make sufficient factual findings to support its obstruction of justice enhancement, the Court remanded Mr. Griffin's case for resentencing.

Upon remand, the District Court again denied Mr. Griffin a reduction for acceptance of responsibility and again imposed the obstruction of justice enhancement.  This time, however, the Court imposed a ten-month sentence -- the minimum recommended under the Guidelines.  Mr. Griffin again appealed his sentence.

On Mr. Griffin's second appeal, the United States argued that the waiver language in Mr. Griffin's plea agreement barred his appeal.  Mr. Griffin, however, argued that the waiver did not apply because he received a sentence greater than the one contemplated in his plea agreement (zero to six months). The Court, however, disagreed, finding that the plea agreement did not contain stipulations limiting the Court to the zero to six month range.  For this reason, the Court found that the District Court imposed a sentence "under the advisory Sentencing Guidelines in accordance with the sentencing stipulations and computations" in the plea agreement.  Accordingly, it dismissed Mr. Griffin's second appeal.

Although one could certainly take issue with the Court's broad construction of the waiver language contained in Mr. Griffin's plea agreement (it does not appear the agreement hinged on the District Court's determination of the Guidelines range), it is a reminder that the devil is in the details regarding appellate waivers.  As the United States continues to clamp down on sentencing appeals, it is likely we will see similar cases in the future.