Waiver Language Matters in Plea Agreements

Atlanta criminal defense attorney Marcia G. Shein recently spoke to fellow criminal defense lawyers on the topic of waiver language issues in plea agreements. When a criminal defendant makes a plea agreement, they typically waive some of their rights, such as the right to appeal the sentence imposed.

Marcia Shein pointed out the recent decision in United States v. Almany, where the appellate court said that the trial judge failed to probe the defendant’s understanding of his waiver of appeal in his plea agreement.

In other words, the defendant was pleading guilty to cocaine and firearm offenses, and didn’t realize that part of the agreement was that no matter what the sentence was that the judge imposed, he, the defendant, could not appeal.

The 6th Circuit Court of Appeals said the judge did not establish that the defendant understood what he was getting into, as procedural rules mandate.

A piece of advice Ms. Shein offered on constructing plea agreements was this: When a defense attorney is negotiating a plea agreement, they should reserve a right to appeal a sentence above a certain guideline level. Here is an example of the reservation of rights:

“Waiver of Appeal and Collateral Attack. The Defendant acknowledges that, after consultation with defense counsel, he fully understands the extent of his rights to appeal, and/or to collaterally attack the conviction and sentence in this case. The Defendant waives any and all rights, including those conferred by 18 U.S.C. 3742 and/or 28 U.S.C. 2255, to appeal or collaterally attack his conviction and any sentence of imprisonment of 6 months or less.”

Using this reservation of the right to appeal a sentence that is beyond the terms of the agreement will prove invaluable to clients that cannot rely on having an error committed by the judge, as in the Almany case.