SCOTUS Gives More Room for Advocacy in Appeal-Waiver Cases

By Steve Klepper

For attorneys on the Fourth Circuit Criminal Justice Act appellate panel, no issue arises more frequently than the scope of appellate waivers in plea agreements. And no issue leads to more Anders briefs when appointed counsel identifies no potentially meritorious legal issue.

Today the Supreme Court of the United States issued an 8-to-1 opinion, Hunter v. United States, which is likely to become one of the most-cited cases in the country. Justice Kagan’s opinion for the Court recognized the “miscarriage of justice” exception to enforceability of appeal waivers:

We thus approve the majority view among the courts of appeals that an appeal waiver is unenforceable when it would result in a miscarriage of justice. That rule, properly understood and applied, sets a high bar: The waiver may be set aside only if the sentence is marred by the kind of egregious error that would bring the judicial system into disrepute. The error must be obvious—not one a judge could reasonably make. And it must be of the type that would undermine public confidence in the judiciary. Sentencing is a complex affair in our criminal justice system, involving for example the detailed calculation of a Sentencing Guidelines range and the mandatory consideration of multiple sentencing factors. In that endeavor, it is unfortunate but inevitable that mistakes will occur. Such standard-fare errors in misapplying sentencing law cannot cancel an appeal waiver. Were they to do so, the utility of waivers in plea negotiations could plummet: such a provision would have less value to the Government, and so might induce fewer concessions to a defendant. And still more to our point, that kind of standard error is not likely to discredit the judiciary’s commitment to law. But some faults in sentencing can. So a high bar is not the same as an insurmountable one. The point of the miscarriage-of-justice limit, as many appellate courts have properly applied it, is to offer a safety valve for extreme cases—a way out of a waiver when the justice system’s basic integrity is at stake.

On the one hand, the Court’s recognition of the majority rule, already recognized in the Fourth Circuit, breaks no new doctrinal ground, and the exception is narrow.

Still, the opinion gives counsel far more room for advocacy on appeal. Until today, appellate courts deciding the parameters of the “miscarriage of justice” exception did not yet know whether the Supreme Court would ultimately recognize the exception at all. Now the exception’s validity is certain, and the Supreme Court has left it to the federal appellate courts to address the doctrine’s limits in new and uncertain areas: “The nature of the miscarriage-of-justice limit precludes any attempt to list all the situations in which it will overcome an appeal waiver. Extreme cases, after all, are hard to anticipate before they happen.” Justice Kagan’s opinion gave a few examples of the kinds of errors we mean,” but the list was merely illustrative of the narrow exception.

More important for advocates, Justice Gorsuch, joined by Justices Sotomayor and Jackson, issued a concurrence that is deeply critical of appellate waivers and posits several situations in which advocates and lower courts might find miscarriages of justice, beyond those cited the Court’s opinion. To be sure, Justice Kavanaugh, joined by Justices Barrett and Alito, issued a second concurrence that “respectfully disagree[s] with [Justice Gorsuch’s] understanding of the miscarriage-of-justice exception,” believing it “would set a lower bar for the miscarriage-of-justice exception than the Court’s opinion does.”

Important for advocates, however, Justice Kagan’s opinion for the Court takes no position on Justice Gorsuch’s concurrence, and only three members of the eight-justice majority have disclaimed Justice Gorsuch’s reading of the majority opinion.

Thus, the range of arguable (non-Anders) issue available to appellate counsel, faced with an appellate waiver in a plea agreement, is as broad as Justice Gorsuch’s concurrence will allow, until the courts of appeals or the Supreme Court issue narrower precedents.