United States v. Robert H. Schmidt and Lawrence B. Schmidt

RIPPLE, Circuit Judge,

dissenting.

The right to appeal a sentence is a statutory right. See 18 U.S.C. § 3742(a). As the majority notes, the circuits that have confronted the issue have held that a defendant can, as part of a plea agreement, agree that he will not later exercise the statutory right to appeal with respect to the sentence to be imposed by the district court under the guidelines. Appellate courts have usually confronted this situation when a defendant has attempted to appeal his sentence despite having entered into such an agreement. In that context, the government has raised the existence of the agreement in reply to the defendant’s appellate arguments. The court then has proceeded to determine whether the waiver contained in the plea agreement was knowing and voluntary.¹ If the court determined that those criteria were met, it considered the sentencing issues to have been removed from the appeal and the appeal was dismissed for want of jurisdiction. There was nothing to adjudicate.²

In this case, we are confronted with an atypical situation. Although it obtained waivers of appellate rights with respect to sentencing from the defendants, the government does not rely upon these waivers on appeal. Instead, it addresses, in great detail, the merits of the defendants’ arguments with respect to the sentence. The majority deals with this situation simply by declaring that, despite the government’s decision not to assert the waivers, we ought to notice them sua sponte and decline to reach the merits.

There is certainly no authority for the proposition that we must accept the waivers of appellate rights despite the government’s lack of reliance upon them.³ Rather, we must determine whether sound principles of appellate decision-making make it prudent that we rely on the waivers. In my view, several considerations counsel against such a course. At the outset, we must remember that it is not our usual practice to ignore the government’s waiver of an appellant’s waiver. Although it has been argued in dissent, without citation of authority, that we can ignore the government’s failure to rely upon a waiver,⁴ our usual practice in direct criminal appeals is to refuse to ignore the government’s failure to rely on a waiver.⁵ Therefore, unless there is an important reason for us to deviate from our usual course, we ought to maintain an even-handed approach to the adjudication of cases and, as we have on countless occasions before, hold that the government has waived its right to rely on the waivers and proceed to decide the case on the merits.

No such reason for deviating from our usual course of proceeding is present here.⁶ It certainly cannot be said that deciding this case on the merits would impose an unreasonable burden on. the court.⁷ Both parties have thoroughly briefed the issues and the case is ready for decision on the merits. All we need to do is decide the case — the same expenditure of resources necessary in every case that comes before us. Indeed, in dicta, the court expresses its view of the merits. Nor would our reaching the merits deprive the government of any statutory right; it would not skew the fairness of the proceedings against the government. Indeed, there is a good reason to respect the government’s waiver. The defendants’ waivers were the product of a plea agreement. These waivers of appellate rights, in derogation of the usual course of adjudicating a criminal case, were for the sole benefit of the government and are based solely on a contractual right, a contractual right that the government does not choose to exercise. The reasons for that decision are best left to the Executive branch. In the exercise of its own high responsibilities for the administration of justice, that branch might well decide, for reasons that it chooses not to divulge to the court, that considerations of justice require that the government no longer invoke a bargain that it once thought was compatible with those responsibilities, but which now would frustrate the execution of those same obligations. It is not our task to insist on a bargain that the government, the only party which might benefit from it, does not want to enforce. We ought to decide the case on the merits.

1 . At least one circuit has been particularly careful to delineate the burden of the government to demonstrate that the waiver is a knowing and intelligent one. In United States v. Bushert, 997 F.2d 1343 (11th Cir.1993), cert. denied, - U.S. -, 115 S.Ct. 652, 130 L.Ed.2d 556 (1994), the Eleventh Circuit, while accepting the principle that a defendant could waive the right to appeal a sentence, specifically noted that such a waiver was dependent on the government's establishing to the satisfaction of the appellate court that the district court had questioned explicitly the defendant during the Rule 11 colloquy about the waiver of appellate rights or that the record otherwise makes it “manifestly clear” that the defendant understood the full significance of his rights. 997 F.2d at 1351.

2 . For example, in United States v. Wiggins, 905 F.2d 51 (4th Cir.1990), the defendant appealed the failure of the district court to grant him a downward departure for acceptance of responsibility. The government claimed that he had waived his right to appeal this issue. Upon examination of the record, the court of appeals determined that the defendant had waived, knowingly and intelligently, his right to appeal sentencing issues. Because the waiver was therefore valid, the sentencing issues were not before the court and the appeal was dismissed for want of jurisdiction. There was nothing for the court to decide.

3 . Cf. United States v. Sarsoun, 834 F.2d 1358, 1361 n. 5 (7th Cir.1987) (holding that the court of appeals need not accept a waiver of appellate rights unsupported by consideration).

4 . See United States v. Leichtnam, 948 F.2d 370, 383 (7th Cir.1991) (Coffey, J., dissenting) (writing that "it is within our discretion to consider such arguments when to do so is in the interests of justice”).

5 . See, e.g., United States v. Baker, 40 F.3d 154, 160 (7th Cir.1994) (government waived defendant’s waiver of sufficiency of evidence challenge); United States v. Anaya, 32 F.3d 308, 312 (7th Cir.1994) (government waived defendant’s waiver of evidentiary objection); United States v. Hollingsworth, 27 F.3d 1196, 1203 (7th Cir.1994) (en banc) (government "bailed out” defendant who arguably waived entrapment defense); United States v. Stone, 987 F.2d 469, 471 (7th Cir.1993) (government waived defendant's waiver of instructional challenge); United States v. Donaldson, 978 F.2d 381, 388 (7th Cir.1992) (government waived defendant’s waiver of various Fourth Amendment claims); United States v. Leichtnam, 948 F.2d 370, 375 (7th Cir.1991) (government waived defendant's own waiver of challenges to evidence and jury instruction); United States v. Dunkel, 927 F.2d 955, 956 (7th Cir.1991) (per curiam) (government waived right to argue waiver by addressing the merits before the Supreme Court prior to remand); United States v. Malin, 908 F.2d 163, 167 (7th Cir.) (government waived waiver of objections to evidence and jury instruction), cert. denied, 498 U.S. 991, 111 S.Ct. 534, 112 L.Ed.2d 544 (1990); United States v. Moya-Gomez, 860 F.2d 706, 745-46 n. 33 (7th Cir.1988) (government waived defendant's waiver of sufficiency of evidence challenge), cert. denied, 492 U.S. 908, 109 S.Ct. 3221, 106 L.Ed.2d 571 (1989); cf. United States v. Caputo, 978 F.2d 972, 975 (7th Cir.1992) ("There are other grounds besides plain error on which courts forgive waivers in criminal as in other cases. One is where the appellee has waived waiver.").

6 . We have held that an appeal that is frivolous may be dismissed even if the appellee does not invite our attention to the matter because further consideration would be a waste of judicial resources. Frederick v. Marquette Nat'l Bank, 911 F.2d 1, 2 (7th Cir.1990). The majority does not rely on this principle here, and I agree that it is not applicable. While this exception is undoubtedly a salutary one when it is appropriately used, our cases make it clear that it ought to be invoked with great circumspection. See Crowley Cutlery Co. v. United States, 849 F.2d 273, 278 (7th Cir.1988) (noting that this exception ought to be applied only when the pleadings and other relevant materials setting forth the claim are read against the relevant statutory and decisional background); see also Hardy v. City Optical Inc., 39 F.3d 765, 767 (7th Cir.1994) (noting the principle in dictum); Beauchamp v. Sullivan, 21 F.3d 789, 790 (7th Cir.1994) (holding that appellant lacked standing and that claim was frivolous in light of recent Supreme Court holding). By contrast, here, the government's non-reliance on the benefit of a bargain that it once struck with the defendant is a decision best left to the Executive branch which, for many reasons unknown to us, might determine that it is preferable to submit the issues that arise at sentencing to the judgment of the court.

7 . In United States v. Giovannetti, 928 F.2d 225 (7th Cir.1991) (per curiam), we decided that we were under no obligation to engage in harmless error analysis when that aspect of the case had not been briefed by the government. We noted that, without the parties’ assistance, we would be required to scour the record in search of errors that, in light of the entire record, we believed to be prejudicial. Id. at 226; see also United States v. Benson, 941 F.2d 598, 605 (7th Cir.1991) (declining to undertake definitive harmless error analysis on "unguided search of the lengthy trial record"); United States v. Kerley, 838 F.2d 932, 942 (7th Cir.1988) (declining to engage in harmless error analysis when government failed to argue it). Compare United States v. Parmelee, 42 F.3d 387, 392 n. 6 (7th Cir.1994) (undertaking harmless error analysis "given the certainty of harmlessness"); United States v. Jewel, 947 F.2d 224, 229 n. 5 (7th Cir.1991) (same); United States v. Davenport, 929 F.2d 1169, 1175 (7th Cir.1991) (same), cert. denied, 502 U.S. 1031, 112 S.Ct. 871, 116 L.Ed.2d 776 (1992).