An Appeal to Remember

In United States v. Guillen, a case from the Court of Appeals for the DC Circuit, the appellant, who had waived her right to appeal in a wire fraud case, argued on appeal (okay, stop–see the irony here?) well, anyway, she argued that a defendant cannot knowingly waive her right to appeal a sentence that has not yet been imposed. All eleven other courts of appeals with criminal jurisdiction have rejected this argument and held such waivers are presumptively valid. The DC Circuit Court of Appeals has previously enforced a waiver of the right to appeal a yet to-be-imposed sentence on two occasions, but they had not yet determined “whether such waivers are valid as a general matter.”  They have now.  In this case, the court agreed with its sister circuits that such waivers generally may be enforced.  That is, a defendant may waive his (or her) right to appeal his sentence as long as his decision is knowing, intelligent, and voluntary. An anticipatory waiver — that is, one made before the defendant knows what the sentence will be — is nonetheless a knowing waiver if the defendant is aware of and understands the risks involved in his decision.

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