Appeal Waiver Inapplicable Where Plea Agreement Not Formally Accepted

U.S. v. Nichols, 2008 WL 565438 (3/3/08) (unpub'd) - The 10th finds an interesting way to avoid an appeal waiver. The waiver did not apply because neither the magistrate judge nor the district court formally accepted the plea agreement. But the 10th rejects the defendant's sentencing argument. The government could refuse to move for the extra one point for acceptance of responsibility due to the defendant's multiple violations of his pretrial release conditions. The government may refuse to move for the point based on its own independent assessment of the defendant's acceptance of responsibility.