Regular readers of this blog will know that the Sixth Circuit has a history of broadly construing appeal waivers in plea agreements. Consider our posts on United States v. Griffin, United States v. Keller, and United States v. Luebbert.
This week's published decision in United States v. Clardy is in the same vein as those decisions but with a twist -- rather than challenging his appeal waiver, the defendant challenged the waiver of his right to take advantage of a sentencing reduction under 18 U.S.C. § 3582(c)(2).
Unfortunately for Clardy, his plea agreement explicitly referred to § 3582(c), stating that he "knowingly waives the right to challenge the sentence imposed in any collateral attack, including, but not limited to, a motion brought pursuant to 28 U.S.C. § 2255 and/or § 2241, and/or 18 U.S.C. § 3582(c)."
Clardy argued that this waiver was ambiguous for three reasons: (1) it was titled "Waiver of Appellate Rights," (2) it confusingly referred to a § 3582(c) motion as a "collateral attack," and (3) authority to reduce sentences belongs to the district court so defendants can't waive it. The Sixth Circuit rejected each argument.
This decision serves as an important reminder that defense attorneys need to carefully explain all provisions in a plea agreement to clients.
I'd note also that the decision is limited to those situations where § 3582(c) is explicitly named in the plea agreement. If the text of a plea agreement never mentions § 3582(c), the defendant should still maintain the ability to take advantage of a subsequent change in the sentencing law that is made retroactive. In such cases, the plea agreement is at best ambiguous with respect to whether the defendant is waiving this important right, and any ambiguity in the agreement is construed against the government. See United States v. Goodloe, 388 F. App'x 500, 503 (6th Cir. 2010) (refusing to construe appeal waiver not explicitly naming § 3582 as sufficient to waive a defendant's right to file a § 3582(c) motion); United States v. Monroe, 580 F. 3d, 552, 556–57 (7th Cir. 2009) (same); United States v. Chavez-Salais, 337 F.3d 1170, 1173 (10th Cir. 2003) (same).