Waiver Flashcards
Isn’t this just a disguised collateral attack or direct appeal, and therefore waived?
• No your honor. And here, I think it’s important to distinguish waiver from merits.
First, as Mr. Weller showed in his motion for reconsideration, many district courts have granted compassionate release after considering similar arguments. Mr. Weller expressly relied on these precedents in making his motion. So, this motion was a good faith effort to seek compassionate release, not a bad faith effort to avoid a waiver. So, win or lose on the merits, this is a compassionate release motion.
Second, Mr. Weller’s arguments are all compassionate release arguments, which concede the legal validity of the sentence and ask for a discretionary reduction based on a combination of circumstances. These are arguments that would only be cognizable under 3582(c)(1)(A)(i) and which would not be a basis for direct appeal or collateral attack.
• On a final note, the government waived its waiver argument by not raising it below. See United States v. Leniear, 574 F.3d 668, 672 n.3 (9th Cir. 2009
Why isn’t a compassionate release motion a direct appeal of a sentence or a collateral attack on a sentence in the meaning of the plea agreement?
In order to show waiver, the government must first demonstrate that this compassionate release appeal falls within the terms of Mr. Weller’s plea agreement. The government can’t do that for three reasons.
First of all, courts of appeals have repeatedly held that sentence reduction motions under 18 usc 3582(c) are not appeals or collateral attacks because they do not question the legal validity of a sentence. Instead, they ask for discretionary reductions based on post-sentencing information. Leniear (9th Cir.) - appeal. Cooley (5th Cir.)- collecting cases.
- Second, the same conclusion flows from the circumstances of this plea agreement. The agreement was drafted before defense-initiated compassionate release even existed. It follows that Mr. Weller did not understand the agreement to encompass that right. Charles
- Third, even if the agreement is ambiguous, ambiguity is construed against the drafter. Transfiguration
But you agree that the waiver can be relevant to whether your client’s legal error is extraordinary and compelling?
If we were in district court and your honors were deciding the merits of Mr. Weller’s compassionate release motion, then yes, sure. The district court has broad discretion to consider the totality of the circumstances in Mr. Weller’s case.
• But here, your honors are not deciding the merits of Mr. Weller’s compassionate release motion. Your honors are deciding whether the district court applied the right law. And unless the government can show that this compassionate release motion falls within the scope of the waiver, then the waiver just has no impact on the legal questions before the court.
Isn’t waiver relevant to interpreting the district court’s ruling?
Not on the facts of this case, for the simple reason that waiver did not come up at all in any of Mr. Weller’s compassionate release proceedings in district court.
- First, the government never raised these waiver arguments as a reason for denying compassionate release.
- Second, the district court wrote an order explaining why it ruled as it did, and that order gives reasons that have nothing to do with waiver.
- So, there is no basis in the record for finding that the district court’s reasoning had anything to do with waiver.
But wasn’t the district court talking about or thinking about waiver when he said that compassionate release can’t be based on matters redressible on direct appeal or habeas? Those were the facts of your client’s case right
No your honor. And that’s because redressibility is neither inherently linked to waiver, nor did the court or the government associate the two in the litigation below.
I think it’s really important to distinguish between waiver and redressibility here. The district court held that legal errors redressible on direct appeal or habeas can’t be a basis for compassionate release. But there could be any number of reasons why a movant is raising a redressible legal error in a compassionate release motion—maybe it’s because of waiver, but maybe it’s because of forfeiture at the appeallate level, or the second and successive bar, or missing the appeal deadline. On the district court’s reasoning, none of those individuals could raise a legal error in their compassionate release motions. And so by hinging its ruling on redressibility, the court was not thereby hinging its ruling on waiver.
• And there’s no other basis in the record to infer that the court was alluding to waiver, rather than to redressability. That’s because (1) the government did not bring up waiver as a reason to deny relief, (2) the district court issued a written ruling giving its reasons, and those reasons did not include waiver.
If we allow defendants to raise these legal error arguments, won’t they all be trying to use compassionate release to get around their plea agreements, just like your client is doing? Won’t that bring plea bargaining to a screeching h
As an initial matter your honor, the government has a legal interest only in enforcing the literal terms of the waivers it bargained for. So because the government has not made the threshold showing that this litigation falls within the literal terms of the plea agreement, the government hasn’t shown how waiver could apply here.
No, your honor, for a few reasons. First of all, the government is free to try to negotiate a plea bargain that covers compassionate release motions. The Seventh Circuit recently upheld one such plea agreement in United States v. Bridgewater, 995 F.3d 591 (7th Cir. 2021).
- Second, to have any hope of convincing a judge to base compassionate release on a legal error, the case would have to be extreme and unusual. In this case, for example, the error approximately doubled the guidelines and resulted in a 5+ year swing between the correct low end and the erroneous low end. Other cases have involved similarly extreme facts, like incorrect career offender determinations.
- Finally, when thinking through slippery slope arguments in this area, I think it’s really important to remember that the Sentencing Commission will come back online sometime in the near future. They will study how compassionate release has played out under the First Step Act, and they will use their particular expertise to decide which circumstances courts can consider. Preempting the Sentencing Commission by categorically barring certain types of reasons is therefore both unnecessary to prevent floodgates problems, and interferes with Congress’s design in giving the Sentencing Commission power to set those limits.
For these reasons, granting relief in a few extreme circumstances will not destroy the habeas or direct appeal systems. To the contrary, it will act as the kind of “safety valve” on strict finality that Congress intended.
But you’re making appeal and habeas arguments, aren’t you?
No, your honor. As an initial matter, we know from Lizarraras-Chacon that merely referencing a legal error in a sentence reduction motion doesn’t transform the motion into an appeal or collateral attack. Lizarraras-Chacon held that a defendant could raise a legal error as part of a 3582(c)(2) motion, and in fact, that district courts had to consider such errors under 3553(a).
Furthermore, here, Mr. Weller’s arguments are compassionate release arguments, not direct appeal or habeas arguments. [see other card]
