United States v. Igbinovia , 71 F. App'x 472 ( 2003 )

RYAN, Circuit Judge,

concurring.

While I concur in the outcome for which my brother, Judge Tarnow, has written-denial of the relief requested on appeal-I do so for the very different reason that I think this court lacks jurisdiction of the appeal.

About sixteen months before submission of this case, the government filed a motion to dismiss for lack of jurisdiction based on the defendant’s agreement to waive his appeal rights. Insofar as I can determine, the motion remains unresolved, except by implication as a result of the majority opinion affirming the judgment below on the merits.

It is undisputed that Igbinovia and the government entered into the written plea agreement which is discussed in the majority opinion. One provision of the plea agreement, however, goes unnoticed: the defendant’s waiver of his appeal rights. It requires no citation of authority to demonstrate that this provision of the plea agreement is as binding as any other.

There is, of course, an exception to the rule for cases in which a defendant attacks the validity of his plea by claiming that it was induced, at least in part, by an unfulfilled promise contained in the plea agreement. It is axiomatic “that when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 80 L.Ed.2d 427 (1971). When a prosecutor breaches such a promise, the defendant’s “conviction cannot stand,” Mabry v. Johnson, 467 U.S. 504, 509, 104 S.Ct. 2543, 81 L.Ed.2d 437 (1984), because the guilty plea fails to “satisfy] the test for voluntariness and intelligence,” id. at 510, 104 S.Ct. 2543. In such a situation, a defendant who has explicitly waived his appeal rights in a plea agreement “nevertheless implicitly preserved] his right to appeal on grounds that his sentence was illegal or imposed in violation of the plea agreement.” United States v. Michelsen, 141 F.3d 867, 872 (8th Cir. 1998); see also United States v. Fleming, 239 F.3d 761, 765 (6th Cir.2001) (citing Michelsen, 141 F.3d at 872).

How then to handle an appeal in which a defendant who waived his right to appeal appeals nevertheless, claiming that the government breached the plea agreement, when it is eminently clear from an examination of the merits that the defendant is bound by his waiver because the government plainly did not breach the plea agreement? This is just such a case. Must the government be put to the expense and inconvenience of investigating, briefing, and arguing such an appeal? Is the court obligated to schedule, hear, and decide an appeal the accused has agreed to waive? I think not.

To preserve a defendant’s right to challenge the validity of a guilty plea he claims was induced by a broken plea agreement promise while, at the same time, preserving the government’s right to rely on a defendant’s appeal waiver, I would adopt the following rule: a defendant is bound by his waiver unless, as a threshold matter, he clearly identifies the specific prosecutorial promise he claims the government breached, with reference, of course, to the language of the agreement itself.

In this case, as is made eminently clear in my brother’s opinion, Igbinovia could not have made such a specific showing because the willingness to “consider” filing a substantial assistance motion is not a prosecutorial promise to make such a motion, and thus cannot “be said to be part of the inducement or consideration” of the defendant’s guilty plea. Santobello, 404 U.S. at 262, 92 S.Ct. 495. Likewise, a sentence is not “imposed in violation of the plea agreement,” Michelsen, 141 F.3d at 872, if the government merely declines to exercise its discretion in the defendant’s favor.

For these reasons, and these alone, I think the defendant has waived his right to make this appeal and that this court lacks jurisdiction to entertain it.