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March 05, 2019 Practice Points

Right to Appeal Waived Despite Lack of Specific Sentence Recommendation

The Seventh Circuit held that the defendant’s lawyer “unmistakably” advocated for a below-guideline sentence.

By Sanford Hausler

The Seventh Circuit, in United States v. Galloway, upheld a sentence that had been based on an incorrect guideline breach because of an appellate waiver in the defendant’s plea agreement. The appellate waiver included a provision that stated that “in the event the Court sentences the defendant to a sentence higher or lower than any recommendation of either party, regardless of the defendant’s criminal history category or how the sentence is calculated by the Court, then the defendant expressly waives the defendant’s right to appeal the sentence imposed in this case on any ground.” The defendant claimed that the waiver did not apply because his counsel had not recommended a sentence, that is, he did not recommend what the length of the sentence should be. The Seventh Circuit stated that although the lawyer “may not have spelled out the number of months he proposed Galloway should spend behind bars, he unmistakably advocated for a below-guideline sentence.” The court noted that although sentence recommendations often involve the suggestion of the length of the sentence, that is not always the case. Accordingly, the court held that the defendant had waived his appellate rights, and dismissed the appeal.

Sanford Hausler is of counsel with Cox Padmore Skolnik & Shakarchy LLP in New York, New York.

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