Gov't Can Argue Appeal Waiver in Brief

U.S. v. Clayton, 2005 WL 1799819 (8/1/05) - The government does not waive the right to enforcement of the appeal waiver by failing to file a pre-briefing motion for enforcement. If the government raises the issue in its brief the 10th will enforce the appeal waiver. The pre-briefing motion was only suggested by the 10th en banc in Hahn to help protect the government's interest in obtaining the full benefit from the appeal waiver. If it chooses to wait until the briefing, so be it. The combo of Clark and Clayton means it would not be in our clients' best interests to take note of appeal waivers in our opening brief if the government has yet to file a motion to enforce the waiver. The defendant's best chance to avoid the waiver is to hope the government neglects to raise it in its brief.