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Media Alerts - USA v. Christopher Erwin - Third Circuit
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March 23, 2015
  USA v. Christopher Erwin - Third Circuit
Headline: Third Circuit Denies Rehearing of Its Decision That the Government Is Excused From Its Plea Agreement Obligations When a Criminal Defendant Violates His Plea Agreement by Filing an Appeal

Areas of Law: Criminal Law

Issues Presented: Should the Third Circuit Court grant a rehearing for this case, in which the Court vacated the defendant's sentence upon finding that he violated his plea agreement by filing an appeal, and that the Government was thereby excused from its plea agreement obligations?

Brief Summary:
When deciding this case in August 2014, the Third Circuit Court addressed the question of what remedy is available to the Government when a criminal defendant violates his plea agreement, which included a waiver of the right to appeal, by filing an appeal. In that opinion, the Court found that Erwin's appeal was within the scope of his appellate waiver, to which he knowingly and voluntarily agreed; therefore, Erwin breached his plea agreement by appealing. Applying contract law, the applicable law for plea agreements, the Court determined that the appropriate remedy for this breach was de novo resentencing in which the Government no longer had the obligation to request downward departure from the Sentencing Guidelines. Accordingly, the Court vacated Erwin's sentence and remanded for de novo sentencing.
In this opinion, the Third Circuit Court, sitting en banc, denies the defendant's petition for rehearing. Judges Ambro, joined by Judges Rendell, Greenaway, and Vanaskie, dissents, stating that when only a waived argument is brought on appeal, the proper remedy is to nullify the appeal and affirm the sentence. He further states that granting de novo resentencing runs counter to contract law, by allowing the Government to get more than it bargained for, and by punishing the defendant with a harsher sentence, and counter to prior cases.

Extended Summary:

Erwin managed a large-scale oxycodone distribution ring that operated throughout the State of New Jersey as well as other locations. Erwin executed a written plea agreement with the Government. In the plea agreement, Erwin agreed to plead guilty to conspiracy, and to voluntarily waive the right to appeal, in return for the Government's agreement not to bring further criminal charges against Erwin in connection with the conspiracy. The parties agreed that the Sentencing Guidelines offense level applicable to Erwin was 39, and that a sentence with that Guideline range would be reasonable. The agreement dictated that if Erwin violated any provision of the plea agreement, the Government would be released from its obligations under the plea agreement. The Court imposed a within-Guidelines sentence of 188 months.

Erwin timely appealed, arguing that the District Court's use of offense level 39, rather than level 38, as its starting point for downward departure was in error. Erwin averred that this deprived him of the benefit of his plea bargain. The Government did not cross-appeal but did contend that the Court should vacate and remand for resentencing where it would modestly increase Erwin's sentence in light of his breach of the appellate waiver.

The Court found that the issues raised in Erwin's appeal fell within the scope of the appellate waiver; that Erwin knowingly and voluntarily agreed to the appellate waiver; and therefore, that Erwin's appeal was barred by the appellate waiver.

Most notably, the Court then determined the appropriate remedy. Citing contract law, which governs plea agreements because they are bargained-for exchanges, the Court noted that a party should be prevented from benefitting from its own breach. The Court stated that while Erwin received the full benefit of the bargain, the Government was forced to devote valuable resources to litigating an appeal that should never have been filed. The Court added that the possibility of de novo resentencing was not barred by the cross-appeal rule, because there was no sentencing error for the Government to challenge. Further, the Court stated that Erwin should have anticipated the possibility that he breached the plea agreement by appealing and would trigger the possibility of relief for his adversary.

Accordingly, the Court concluded that de novo resentencing was just and consistent with basic principles of contract law and the plain language of the plea agreement. Therefore, it vacated and remanded Erwin's case for resentencing with the Government relieved of its obligation to seek a downward departure.

In this opinion, the majority of the Third Circuit Court, sitting en banc, denied Erwin's petition for rehearing. Judge Ambro, joined by Judges Rendell, Greenaway, and Vanaskie, dissented from the denial of the petition for rehearing.

In his dissenting opinion, Judge Ambro states that this was not even a novel question when decided, because the appropriate remedy when a waived argument is brought on appeal is to enforce the waiver by not considering the argument. Accordingly, in the case at hand, the Court should have affirmed Erwin's sentence. Judge Ambro points out that the cases the majority relied on all involved presentence breaches that relieved the non-breaching party to restore the parties to the status quo before the breach. In Erwin's case, the breach came after sentencing; therefore, to restore the parties to their pre-breach positions, the Court should have nullified Erwin's appeal and affirmed his sentence. Judge Ambro adds that the majority's decision gives the Government more than it bargained for; that contrary to the typically restorative purpose of contract law, this decision is punitive; and that the majority provides no sound reason for its new remedy. To this last point, Judge Ambro cites a number of scathing reviews from commentators regarding the majority's decision.

To read the full opinion, please visit http://www2.ca3.uscourts.gov/opinarch/133407po.pdf

Panel (if known): McKee, Chief Judge, and Rendell, Ambro, Fuentes, Smith, Fisher, Chagares, Jordan, Hardiman, Greenaway, Vanaskie, Krause, and Nygaard, Circuit Judges

Argument Date: December 31, 2014

Date of Issued Opinion: March 10, 2015

Docket Number: No. 13-3407

Decided: Petition for rehearing denied

Case Alert Author: Jaclyn Poulton

Counsel:
David R. Fine, Esq., Jeffrey M. Brandt, Esq., Norman Gross, Esq., Mark E. Coyne, Esq.

Author of Opinion: Judge Chagares

Circuit: Third Circuit

Case Alert Supervisor: Prof. Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 03/23/2015 03:06 PM     3rd Circuit  

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