In Hunter v. United States (here), the Court looked at how rigid is a plea waiver that precluded the right to appeal except for a claim of ineffective assistance of counsel. Petitioner was charged with bank and wire fraud involving financial institutions. Although charged with ten counts, he pleaded guilty to one count of aiding and abetting wire fraud with the remaining nine charges being dismissed. The agreement contained an appeal waiver that applied to both the conviction and sentence. Petitioner appealed a mandatory-medication condition of the sentence of 51 months in prison, followed by three years of supervised release.
Justice Kagan, writing for the Court held that “[w]e 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.” The Court remanded the case to the Fifth Circuit “to decide whether enforcing Hunter’s appeal waiver would result in a miscarriage of justice.”
There were several separate voices in concurrence and also a dissent in this case. Justices Gorsuch, Sotomayor, and Jackson concur stating, “[t]oday, the Court finally begins to correct course, taking an important step toward reining in appeal waivers. It is not a solution to all of plea bargaining’s excesses, and perhaps not even those associated with appeal waivers. But it is a start.” Justices Kavanaugh, Alito, and Barrett then concur to disagree with the Gorsuch concurrence in its “understanding of the miscarriage-of-justice exception.” The argument is that this “concurring opinion would set a lower bar for the miscarriage-of-justice exception than the Court’s opinion does.”
Justice Barrett writes a separate concurrence to clarify an aspect of Justice Thomas’s dissent. She states that “Justice Thomas raises some thoughtful points about the Supreme Court’s supervisory power. . . . [the Court’s] opinion nowhere mentions this power, however, and I do not understand the Court to implicitly assert it.”
Finally, the sole dissent by Justice Thomas saw “no basis for excusing Hunter from his appeal waiver.”
Although there are different views on the flexibility of an appeal waiver, this case is definitely a step in the direction of allowing scrutiny in this area.
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