Appeal Waiver Enforced

United States v. Smith, No. 06-3239 (10th Cir. Sept. 11, 2007)

Another reminder to be careful of appeal waivers.

10th dismissed Defendant’s appeal ruling that she had entered an enforceable appeal waiver as part of her plea agreement. The waiver of “the right to appeal the sentence in this matter except to the extent, if any, the court departs upwards from the applicable sentencing guideline range determined by the court” encompassed all sentencing challenges except the one explicitly stated. The district court was permitted to find an obstruction of justice based upon facts in an evidentiary hearing and was not limited to the facts stipulated in the plea agreement. Her waiver was knowing and intelligent and the fact the district court indicated she had the right to appeal after the sentencing hearing did not negate the waiver since she entered it before the plea hearing. Under different circumstances the district court’s statement might have rendered the waiver invalid. Finally, it would not be a miscarriage of justice to enforce the waiver. The district court did not constructively reject the plea agreement by assigning two additional points for obstruction of justice, something not contemplated by the plea agreement.