United States v. Riggi, 2011 U.S. App. LEXIS 16498

Abramo appeals a judgment following a plea and a reduced sentence; he challenges ex post facto application of the 2008 Guidelines to a conspiracy ending in 1989.
The plea agreement included an appeal waiver: no direct appeal of a sentence of 18 years or less, binding even if the court used a different Guidelines range.
Parties stipulated that the 2008 Guidelines apply and that an 18-year sentence is the applicable guideline sentence; the total maximum was 216 months.
Abramo was sentenced to 186 months after a Florida sentence; the district court applied the 2008 Guidelines despite the potential ex post facto issue.
On remand from earlier Crawford-based error, Abramo pleaded guilty to related counts with the waived appeal in place; the issue is whether the waiver is unenforceable due to ex post facto concerns.
The court addresses whether ignorance of ex post facto rights at signing could void the waiver and whether the waiver should be enforced despite potential constitutional error.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether ex post facto rights void the appeal waiver.	Abramo argues ex post facto rights are unwaivable.	Abramo's waiver was knowingly and competently given and should be enforced.	Waiver enforceable; ex post facto rights did not void the waiver.
Whether ignorance of ex post facto rights at signing voids the waiver.	Ignorance may render the waiver invalid.	No basis to void the waiver for ignorance of rights; related to contract rules and counsel advice.	Waiver remains enforceable; ignorance does not void it here.
Whether the waiver can be set aside due to alleged constitutional sentencing error.	Constitutional error at sentencing could undermine the waiver.	Waiver should still be enforced notwithstanding sentencing peculiarities.	Waiver enforceable; no basis to set aside via sentencing error.
Whether the court properly treated the ex post facto issue under one-book rule and guidelines application.	Different guidelines could create ex post facto risk affecting the waiver.	Guidelines application followed stipulations; any ex post facto risk did not vitiate the waiver.	Not reached as waiver enforceable; the issue does not defeat the waiver.

Arevalo (Vigil), 628 F.3d 93 (2d Cir.2010) (waivers of the right to appeal presumptively enforceable when knowingly made)
Gomez-Perez, 215 F.3d 315 (2d Cir.2000) (plea waivers are enforceable when knowing, voluntary, and competent)
Woltmann, 610 F.3d 37 (2d Cir.2010) (factors for voiding an appeal waiver, including judicial abdication and biased sentencing)
Yemitan, 70 F.3d 746 (2d Cir.1995) (contract principles apply to plea agreements and waivers)
Rosen, 409 F.3d 535 (2d Cir.2005) (mutual mistake and plea agreements where sentencing calculation errors occur)
Morgan, 406 F.3d 135 (2d Cir.2005) (existing-rights arguments do not automatically void waivers; pleas carry risks)