Waiving Right to Appeal Means Waiving Right to Challenge Sentencing Errors, Eleventh Rules – U.S. v. Smith

September 14, 2011 by David S. Seltzer

As a south Florida drug crimes defense attorney, I know that federal drug crime sentences can be very harsh. During the height of the so-called War on Drugs, sentences for drug crimes were heavily inflated, and as a result, it’s still possible to serve a long sentence for a nonviolent crime. Another major criticism of federal drug law was addressed last year with the passage of the Fair Sentencing Act, which reduced the sentences for crack cocaine crimes, which carried sentences 100 times greater than sentences for the exact same crimes involving powdered cocaine. Critics pointed out that crack is disproportionately an African American drug, while powdered cocaine tends to be abused and dealt by white people. The FSA was behind the appeal in United States v. Smith, in which defendant Arthur Smith ultimately did not get his sentenced changed.

Smith was arrested in 2009 for his involvement in a South Florida drug distribution ring and on June 7, 2010, agreed to plead guilty to one count of possession of 50 grams or more of cocaine base with intent to distribute. The plea agreement included a waiver of Smith’s right to appeal the sentence or the manner in which it was imposed unless it departed upward from sentencing guidelines or exceeded the maximum. The court took pains to confirm this at Smith’s plea hearing. In August of 2010, the FSA was passed. Smith objected to a pre-sentencing report that did not take the FSA into account. At the October sentencing hearing, the court declined to apply the FSA but noted that later legal developments might make the FSA relevant. Those legal developments came in the form of U.S. v. Rojas, an Eleventh Circuit decision finding that the FSA applies if the crime took place before the law was enacted but the sentence took place after.

The Eleventh agreed that this is exactly Smith’s situation, and the FSA should apply. This would cut his mandatory minimum sentence in half, the court noted. It may or may not also lower his base offense level, the Eleventh said, because the offense had to do with powdered cocaine. However, the court found that none of this matters, because Smith’s appeal waiver prevents him from enforcing his rights. None of the exceptions to the appeal waiver apply in this case: the sentence does not vary from the statutory maximum or depart upward from guidelines. Indeed, previous Eleventh Circuit caselaw shows that a valid appeal waiver includes a waiver of the right to appeal blatant error by the court — not just a refusal to consider an issue that later became important. If waivers only waived issues that were meritless, the Eleventh said, they would be useless to both sides. Thus, it upheld the defendant’s sentence.

This is a disappointing case for Miami narcotics criminal defense lawyers like me. Smith would have had every right to be sentenced under the FSA even at the time of his sentencing; the judge simply declined to apply the FSA. In order to make his plea bargain, Smith had to agree to the government’s conditions, which included a waiver of his right to challenge that in the future, even though the judge expressly noted that the decision was open to a future challenge. Thus, there is little recourse for defendants except to refuse a plea bargain, or try to negotiate away the waiver as it applies to specific and potentially important issues. An experienced Fort Lauderdale drugs criminal defense attorney can help defendants identify those potentially important issues and negotiate to keep them out of the waiver, which is one reason why an attorney’s help can be vitally important.

If you or someone you love is facing criminal charges in south Florida, you should talk to Seltzer Law, P.A. today to discuss your options and your legal rights. For a free consultation, call us 24 hours a day and seven days a week at 1-888-THE-DEFENSE (1-888-843-3333) or send us a message online.

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