Sixth Circuit goes more conservative than the Fifth

In United States v. McGee, an unpublished decision today, the Sixth Circuit confronted an issue that it has previously avoided:  the application of appellate waivers to ACCA determinations.  Often plea  agreements will contain a provision wherein the defendant waives the right to appeal his sentence unless the sentence exceeds the statutory maximum.  Normally, the statutory range for felon in possession of a firearm under 18 U.S.C. § 922(g) is 0-10 years.  But if the defendant qualifies for an Armed Career Criminal Act (“ACCA”) enhancement, the statutory range is 15-life.

So, if the district court erroneously imposes an ACCA sentence of 15 years, is that sentence in excess of the correct statutory maximum of 10 years?  If so, the appellate waiver would not apply.  While acknowledging that the Fifth Circuit has allowed appeals in this scenario, the Sixth Circuit took a different path.  The Sixth Circuit held that “the maximum sentence authorized by Congress for a violation of § 922(g) is life imprisonment.”  Accordingly, the appellate waiver applied in McGee.

In other words, no matter how clear it is that the defendant does not qualify for an ACCA sentence, no matter how obvious it is that the defendant should be facing a statutory maximum of 10 years, the Sixth Circuit will be powerless to correct this type of an error if there is an appellate waiver to all sentences within the statutory maximum.

Of course, there is a simple solution.  Defendants could attempt to insist on rewording appellate waivers to bypass McGee by stating explicitly that the defendant reserves the right to appeal a determination that he qualifies for the ACCA.  Given the rapidly evolving nature of the Supreme Court’s ACCA jurisprudence, it might be worth considering routinely insisting on such an exception to the appellate waiver in the event the next Supreme Court case impacts your client’s ACCA eligibility.