The advantage of a broad sentencing appeal waiver is that it will bar the appeal of virtually any Sentencing Guideline issue. For example, in United States v. Johnson, 67 F.3d 200 (9th Cir. 1995), the Ninth Circuit dismissed the defendant's appeal because he had agreed to waive his appeal in the plea agreement. The court relied on the broad "any sentence" waiver language in the plea agreement to reject the defendant's claim that the waiver did not encompass appeal of issues arising out of a law enacted in the period between his plea and sentencing.
The disadvantage of the broad sentencing appeal waiver is that it could result in guideline-free sentencing of defendants in guilty plea cases, and it could encourage a lawless district court to impose sentences in violation of the guidelines. It is imperative to guard against the use of waivers of appeal to promote circumvention of the Sentencing Guidelines. All charging decisions and plea agreements are subject to the rules set forth in this chapter. In this regard it is also important to note that the Sentencing Commission's policy statements allow judges to accept plea agreements that do not undermine the statutory purposes of sentencing or the Sentencing Guidelines; the policy statements also admonish the parties when using stipulations to set forth the relevant facts and circumstances of the actual offense conduct and offender characteristics and not to include misleading facts. USSG §§ 6B1.2 and 6B1.4 (Nov. 1994).
Use of waiver of appeal rights in a manner resulting in sentences in violation of the Sentencing Guidelines could prompt a court of appeals to reconsider its decision to uphold the validity of a sentencing appeal waiver. Alternatively, the reviewing court could construe a sentencing appeal waiver narrowly in order to correct an obvious miscarriage of justice. To avoid these concerns, in a case involving an egregiously incorrect sentence, the prosecutor should consider electing to disregard the waiver and to argue the merits of the appeal. That would avoid confronting the court of appeals with the difficult decision of enforcing a sentencing appeal waiver that might result in a miscarriage of justice.
A second kind of sentencing appeal waiver is limited in some respect, most likely with regard to a particular sentence, sentencing range, or guideline application. For example, a sentencing appeal waiver could preclude appeal of sentences consistent with a recommended sentence, sentencing range, or particular guideline application agreed to by the parties. Thus, if the plea agreement provides that the prosecutor will recommend the lower half of the available sentences for a particular offense level applicable to the case (subject to a determination of the criminal history category), the plea agreement could also provide for a waiver of the defendant's right to appeal any sentence imposed within the agreed-upon lower half of the applicable range. Alternatively, the sentencing appeal waiver could be narrowed to apply to a particular guideline application. For example, if the parties agree that a two-level reduction for acceptance of responsibility applies, the plea agreement could provide for a waiver of the defendant's right to appeal any sentence on the basis of such a two-level reduction.
A variation of the above limited sentencing appeal waiver could be used where the parties do not agree to a particular sentencing or guideline application. The defendant can, nevertheless, agree not to appeal the court's determination of a particular factor. Thus, a waiver of appeal rights could apply to any determination by the court regarding acceptance of responsibility. Or, in a fraud case, where the amount of loss is disputed, the defendant could waive the right to appeal any determination within a specified range. Finally, a waiver could provide that the defendant will not appeal his or her sentence unless the sentence constitutes an upward departure from the guideline range deemed applicable by the sentencing court, in which case the defendant's appeal will be limited to contesting the upward departure.
The above are just some of the restricted types of waivers that can be constructed in appropriate cases; all of these waivers can extend to post-conviction rights. The advantage of a limited sentencing appeal waiver is that it is flexible and can be modified to meet the parties' needs. A limited sentencing appeal waiver may be useful when the government seeks a plea agreement, but the defendant is unwilling to plead guilty without some assurance that he or she will be entitled to appeal an erroneous sentence. The disadvantage of a limited appeal waiver is that it will not reduce the number of sentencing appeals as much as a sentencing appeal waiver that requires the defendant to relinquish appeal of all sentencing issues.