Giving Trial Judges the Final Word: Waiving the Right to Appeal Sentences Imposed under the Sentencing Reform Act

This article analyzes the enforceability of appeal-of-sentence waivers in terms of due process and public policy. The article identifies the applicable standards for determining the enforceability of waivers of federal rights, and then applies those standards to waivers of the right to appellate review of criminal sentences. The article first examines the due process concerns raised by appeal-of-sentence waivers and concludes that, while appeal-of-sentence waivers should be examined on a case-by-case basis to ensure they are voluntary, deliberate, and informed decisions of the defendant, a per se rule barring their enforceability on due process grounds is not warranted. The article then examines the public policy concerns raised by appeal-of-sentence waivers. Should the parties to a federal criminal action be allowed to cast their lot with the trial judge, thus making the trial judge the final arbiter of law and fact with respect to the sentencing decision? How are relevant policy interests, including the purposes underlying the new right to appellate review of sentences, affected by enforcement of appeal-of-sentence waivers? If appeal-of-sentence waivers should be enforced, what limitations should be placed on their enforcement? The article concludes that limited enforcement of appeal-of-sentence waivers is justified. As a general matter, voluntary, deliberate, and informed appeal-of-sentence waivers should be enforced except when enforcement will preclude review of claims that (1) a sentence was imposed in violation of the underlying substantive criminal statute, (2) in imposing sentence the trial judge considered factors that may not lawfully be considered, and (3) the trial judge committed plain error in imposing sentence in violation of the Sentencing Reform Act. Finally, the article asks whether an additional need exists for a Guevara-type mutuality requirement: Should appeal-of-sentence waivers be enforced when only one party has waived the right to appeal? The article concludes that appeal-of-sentence waivers should not be enforced against either party unless both parties have explicitly waived their right to appeal