United States v. Marcus Jacobs
2011 U.S. App. LEXIS 5097
| 5th Cir. | 2011Background
- Jacobs pled guilty to possessing stolen mail in violation of 18 U.S.C. § 1708.
- In his plea agreement, Jacobs waived his right to appeal the sentence with two exceptions: above statutory maximum or an upward departure not requested by the Government.
- Rule 11 hearing confirmed Jacobs understood and agreed to the waiver, with the court explaining its scope.
- At sentencing the advisory guidelines range was four to ten months; the Government recommended seven months.
- The district court varied upward to 36 months, treating it as an upward departure; it later clarified it imposed a sentence outside the guidelines framework (i.e., a variance).
- Jacobs appealed the sentence, arguing the upward-departure exception allowed review; the government moved to dismiss.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the upward-departure exception authorize appeal of an upward variance? | Jacobs (plaintiff) argues the exception covers upward sentences from the Guidelines. | Jacobs (defendant) contends the exception applies to departures, not variances, so appeal is barred. | No; the exception does not authorize review of the upward variance. |
Key Cases Cited
- Cortez, 413 F.3d 502 (5th Cir. 2005) (plain meaning of appellate waiver governs)
- Bond, 414 F.3d 542 (5th Cir. 2005) (contract-interpretation approach to waivers)
- Palmer, 456 F.3d 484 (5th Cir. 2006) (waivers construed narrowly against government)
- Irizarry v. United States, 553 U.S. 708 (2008) (departure vs variance distinction; notice requirement)
- McKinney, 406 F.3d 744 (5th Cir. 2005) (interpretation of waiver terms; contract-like approach)
- Jackson, 523 F.3d 234 (3d Cir. 2008) (waivers may allow appeal of certain departures/variances depending on terms)