United States v. John Robert Andis

trict previous drug court’s quantity find-

ings. We affirm.

The district correctly found it

was bound our mandate to sentence

Banks thirty years imprisonment. See Bartsh, 864,

(8th Cir.1995). Banks’s argu remaining precluded

ments are because they raise or

are essentially based on arguments he did

not bring in prior appeal, see United v. Stuckey, 528,

Cir.), denied, cert. 1011, 534 U.S. 122 S.Ct. (2001), 151 L.Ed.2d 409 and because

the drug quantity issue was outside the scope

limited of the mandate for resen

tencing, see Behler, United States v. (8th Cir.1999).

Accordingly, grant counsel’s motion withdraw, and we affirm the judgment

of the district court.

UNITED America, STATES of Appellee,

Plaintiff — ANDIS,

John Robert Defendant—

Appellant.

No. 01-1272.

United States Appeals, Court of

Eighth Circuit. Sept.

Submitted: 2002.

Filed: June 2003. London, Federal argued, S.

Norman (llene A. Louis, Defender, MO St. Public brief), appellant. for Goodman, on Wilkerson, At- U.S. Assistant G. Donald Louis, (Raymond MO argued, St. torney, brief), appellee. for Gruender, on the W. HANSEN,1 Judge, Chief Before BOWMAN, McMILLIAN, BRIGHT, LOKEN, WOLLMAN, MORRIS BYE, MURPHY, ARNOLD, SHEPPARD SMITH, MELLOY, Circuit RILEY, banc. Judges, en MELLOY, Judge. ap- of this review en granted banc circum- under what to determine

peal effectively waive can a defendant stances plea of a valid part rights as appellate case, R. Andis John In this agreement. signifi- plea agreement into entered In rights.2 appellate his cantly limited agreement, plea in his spite of the certain appeals now Andis con- release, claiming the his constitute ditions him not bar does therefore appeal. this bringing from waiver of only a defendant's appeal concerns stepped Hansen David R. Honorable 1. however, note, rights. We appellate Judge United as Chief down synony- rights as at the two Eighth Circuit these viewed for the have often Appeals Court States, See, 2003. He v. United e.g., March DeRoo of business mous. close ("As B. general James Honorable succeeded been en- distinguish the rule, Loken. no reason we see direct-appeal forceability waiver of agreement Although Mr. Andis’s 2. rights in the of collateral-attack from waiver post- rights and his both waived context.”) this U.S.C. rights under 28 conviction pаnel A of this Court originally remand to the establishment of the Guideline ed this case to the district court3 for fur range, reserving only ther consideration of the conditions of Mr. from an upward or departure downward Andis’s supervised release. See from range Guideline that is estab- Andis, 277 F.3d 984 lished at sentencing. Cir. regard, 2002). panel We vacated parties the expressly decision and acknowledge that no ordered an en rehearing. agreement banc We now has been reached as to issues although pertinent hold that to generally defendant calculation, Guidelines can appellate except waive rights, such as a waiver found in is this section of the subject Stipulation. to certain limitations. These We also issues are left for hold that because Mr. District determination; Andis entered Court’s into a plea agreement District that contained a Court’s decision shall valid not be appellate appeal. waiver of his to rights defendant and the sen states that he imposed fully tence is was not satisfied illegal, repre- the condi with tions sentation he supervised of his has received from his coun- release not be sel, that they appeal. reviewed result, on discussed the Gov- ap his case, peal possible ernment’s is dismissed. defenses and witnesses, defense and that his counsel I. Overview has completely and satisfactorily ex- plored all areas which On October Mr. Andis entered requested relative to the “Stipulation into a of Government’s Facts Relative to defense, case and his and in Sentencing,” light this, of which included a plea agree- (the the defendant agrees further ment to “Agreement”). waive all Agree- rights to ment, contest the pled he guilty conviction sen- to one count of trans- tence, except grounds for porting prosecutori- minor in interstate commerce for al misconduct or illegal ineffective activity sexual assistance of in violation of 18 counsel, in 2428(a). any post-conviction § proceed- U.S.C. In exchange for the ing, including one pursuant Government’s to Title dismissal of the remaining U.S.C., Section 2255. counts in the promise indictment and to further prosecute him for events related appeal, On Mr. Andis claims that despite to transporting a fourteen-year-old girl for waiving rights, he implicitly the purpose of engaging conduct, sexual retained right appeal to illegal an sen- Mr. agreed Andis to waive certain statuto- tence. In particular, he argues that ry and rights, constitutional including most conditions of his supervised release are of his appellate rights. por- The relevant illegal they generic because conditions tions of Agreement provided that: imposed regard without specific to the

In the event the District Court accepts characteristics of his crime required by as ... defendant 3583(d). un- 18 U.S.C. The Government part derstands of this agree- contends that Mr. Andis waived his ment, both the defendant and the Gov- appeal his sentence regardless of wheth- ernment hereby mutually agree to waive er the imposed render it illegal. all to appeal whatever sentence is Alternatively, the argues Government imposed, including any issues that relate if Mr. Andis retained the right 3. The Stephen Honorable Limbaugh, N. Unit- trict of Missouri. ed States Judge District for the Eastern Dis- ‍​​‌​​​​‌​​‌‌‌‌​​‌‌​‌​​‌‌​​‌​‌‌‌‌​‌​‌‌‌‌​‌​‌​​‌‌‌‍sen- judgments and finality of serve sentence, the conditions then illegal pleas to valid pursuant imposed tences do not constitute bis release plea agree- notе also guilty. We sentence. such the accused of value ments are Appellate Rights II. Waiver gov- from the concessions gain order Agreements Plea ernment. specifics Cir.1992) (internal analyzing Before opportunity omitted). we take appeal, Andis’s citations position this Circuit’s clarify review that the note further agree- waivers the use rather right but not a constitutional ments. Abney v. of statute.” a creature “purely 651, 656, S.Ct. States, allowed 97 rule, 431 a defendant is U.S. general a United (1977); Every circuit see 18 U.S.C. 2034, 651 52 L.Ed.2d appellate rights. to waive that has held has reached Court Supreme issue 3742. The has considered that forms certain constitution some can waive that at least a defendant the conclusion gen plea. For guilty See a entering permissible. rights by are al waivers appeal 20, 14, Teeter, Raley, F.3d 506 U.S. 257 v. example, v. in Parke States erally United (1992), the 517, v. Her 391 (1st Cir.2001); States 121 L.Ed.2d United 113 S.Ct. 21-27 (2d guilty plea “a 110, Cir. that 113-14 stated nandez, Supreme F.3d Court 242 Khattak, F.3d 273 of three constitutional a 2001); v. constitutes waiver States United trial, v. (3d Cir.2001); jury States a United 557, rights: 559-63 accusers, (4th privi and 399, Cir. 402-06 Brown, confront one’s 232 F.3d Melancon, 29, at 972 Id. against v. self-incrimination.” 2000); lege States United v. (5th Cir.1992); 517; States United States 566, United see also 113 S.Ct. F.2d 567 (8th (6th 816, 761, Cir. 764 819-20 F.3d 152 Fleming, Gray, 239 F.3d v. Jemison, F.3d a de 237 constitutional 2001); (discussing v. States United plea (7th Cir.2001); entering guilty by States 911, United waives fendant 916-18 (9th Parke). the Su 1179, 1182-84 Given citing 235 F.3d Nguyen, v. Rubio, 231 a defendant v. Cir.2000); has allowed preme States Court United be (10th Cir.2000); we would rights, United 709, waive constitutional F.3d 711-13 1166, prohibit Howie, 1168-69 a reason F.3d to find hard-pressed 166 v. States occasions, statutory Cir.1999). purely waiving (11th On numerous from defendant adopted a simi general acknowledged circuits have right. Other we also of these the use including approving these for waivers rationale lar permissibility Teeter, 21- at See, See, 257 v. Unit F.3d e.g., e.g., DeRoo agreements. waivers. plea (8th 561; Khattak, at United Cir. States, 22; 923-24 273 F.3d F.3d ed Morrison, Navarro-Botello, v. v. 2000); States States United Cir.1990). (8th Cir.1999); United F.3d Michelsen, 141 868-73 challenging for rational basis see no We Cir.1998). can a defendant premise general waives supporting plea policy reasons enter into however, have, im- We rights. appellate summarized werе waivers these the use posed limits Rutan: limits here. When these and we reaffirm agreements virtues chief [t]he waiver, must purported reviewing a finality. Waiv- economy, and speed, are falls within pre- confirm plea agreements ers scope of the waiver and that both al to allow him to withdraw a guilty plea. plea agreement waiver and were entered Id. at 114. agree position with the knowingly into and voluntarily. Even taken the Second agree- Circuit. Plea met, however, when these conditions are ments strictly will be construed we will enforce a waiver where to do so ambiguities agreements in these will be would in a miscarriage justice. result against read the Governmеnt and in favor defendant’s rights. Scope

A. of Waiver agreements Plea are essentially con Knowing Voluntary B. tracts between Govern A defendant must enter into a INS, ment. Margalli-Olvera v. agreement and vol (8th Cir.1994). 345, However, these untarily agreements for these to be valid. special limita DeRoo, See 923; Morrison, 223 F.3d at given tions their unique Signifi nature. 568; Michelsen, 171 F.3d at 141 F.3d at cantly, this Court stated Margalli-Olv 871. This is the same standard the Su “[a]pplication era that of these contract preme has required guilty Court all for principles is tempered by the constitution pleas. See United Gray, implications al v. 152 plea agreement.” Id. F.3d important (citing Also Parke was our statement that Raley, 517). pleа 506 U.S. at agreement “[w]here S.Ct. is ambiguous, the are ambiguities against construed the requirement The plea that a agree government.” Id. at 353. Interpreting ment and waiver be entered knowing into plea agreements in this manner reflects ly and voluntarily applies to each term of the fact that these are normal an agreement. For example, a defendant ly drafted the Government and involve may knowingly and voluntarily enter into a significant rights of a such, defendant. As plea agreement waiving right the jury to a the proof burden of is on the Government trial, but nonetheless fail to knowing have to demonstrate that a plea agreement ly and voluntarily waived rights-in other cleаrly and unambiguously waives a defen cluding appellate rights. right many dant’s to There are appeal. Id. ways in agreement, an which aspects or Hernandez, United States v. In an agreement, could be entered into with Second Circuit stated that while waivers out requisite knowledge or voluntari appellate rights generally valid, these ness. Examples include an agreement en waivers “are to be applied ‘narrowly’ and tered into upon the ineffective assistance ‘strictly construed against the Govern counsel, DeRoo, at ” F.3d or ment.’ (2001) (internal 242 F.3d undue coercion.4 omitted). citation and quotations court then concluded important waiver One way a district court can Hernandez did not prohibit the help ensure that a plea agreement and from challenging the district court’s refus- corresponding waiver are entered into 4. Although we yet have not decided a case (explaining "the [in court had Worcester] coercion, alleging such First Circuit has pressured taxpayer-defendant into waiv- challenge allowed defendant to a facially ing right exchange for a valid waiver because it was entered into as a lighter agreement sentence” and the was not result of undue coercion from the court. one prosecution "between and the de- Commissioner, (1st Worcester 370 F.2d 713 fense.”) (emphasis original). Cir.1966); Teeter, but see 257 F.3d at 21 n. 3 DeRoo, (stating at 923-24 properly See voluntarily is knowingly rights does not that a waiver deci his or her about question a defendant illegal of an prohibit agreement waive enter that sion to of the terms of or a sentence violation yet to have address appeal. asserting ineffec- agreement, or a claim by a statement impact of an erroneous counsel); Michelsen, 141 tive assistance agreement time a court at district (describing at 872 n. 3 to do so here.5 and decline accepted sentence). statement, However, ‍​​‌​​​​‌​​‌‌‌‌​​‌‌​‌​​‌‌​​‌​‌‌‌‌​‌​‌‌‌‌​‌​‌​​‌‌‌‍an erroneous because as re make a determination failure to adopted the miscаr- Other circuits 11(b)(1)(N), under Fed.R.Crim.P. quired and included riage justice exception error, a district potential alia, can create sentences exception, inter within this correctly address endeavor constitutionally impermissible should based on race) and ascertain asserting in a and claims (e.g., factors See, volun e.g., that a defendant assistance of counsel. ineffective by the Teeter, addressed tarily (stating 25 n. 9 & 10 waived the F.3d at address, aha, inter agreement. would the court constitutionally imper- based sentences help also process should Following this factors, even when a valid missible accept judge whether determine (dis- Khattak, existed); at 562 a distriсt general, plea agreement. other circuits cussing where circumstances accept a obligation to is under no judge invalid). be appeal waivers to have found 11(c) See Fed.R.Crim.P. plea agreement. an ex- provided have not Although has the district court (stating that list of the circumstances haustive plea agreements). reject most authority to justice, miscarriage of a might constitute agreement, authority reject con- are recognize that these waivers we objectiona- or otherwise inequitable if it is a defendant between tractual on either ble, a further check operates as not be the Government should over-reaching. party’s such, As we by the courts. easily voided narrow one exception is a caution this that Miscarriage of Justice C. the allowed swallow will not be been that a waiver has Assuming appellate of that waivers general rule voluntarily, we knowingly and into entered valid. an otherwise refuse to enforce will still justice excep miscarriage in a of the if do so would result valid waiver we reaf appeal, Andis’s relates to Mr. justice. Although tion miscarriage of we has a defendant firm in this Circuit exception, we that this previously not defined sentence, illegal appeal an components. the many of its have described negate the post-sentencing did not mаde ad- Court in Michelsen 5. We note that this noting, howev- rights, appellate but by waiver the made statements dressed erroneous er, result in that such a statement could hearing sentencing court at defendant's ambigu- plea agreement was finding the that the district court’s erroneous determined that ous). appel- negate a waiver of did statements not by Circuit position addressed this This not been rights. F.3d at 872. What has late 141 statement, about by impact Unit- an erroneous adopted circuits. See is been other 301, (2d Fisher, rights, on the appellate will have F.3d 304-05 defendant's ed is made Cir.2000) validity waiver if that statement (stating the Second that by the Sixth, accepted Fifth, is when a Eighth, and joins Tenth district court. determining an erroneous statement that (“an though even there exists an otherwise val- express waiver of [a defendant’s] DeRoo, 923; id waiver. See 223 F.3d at appeal, which was knowing and Michelsen, 141 F.3d at 872.6 In United voluntary, [precludes] based Greatwalker, explained we [a] claim that misapplied [a] district court illegal it “[a] sentence is when is not autho- Guidelines.”); United States v. Atter by rized judgment of conviction or berry, 144 F.3d greater it permis- when is or less than the (dismissing the defendant’s statutory penalty sible for the crime.” 285 base by offense used level Cir.2002). In United sentence, court in determining his because Peltier, recently addressed he had waived his rights); Unit illegal what constitutes an sentence: ed States v. Feichtinger, [ n ] sentence is it is when not (7th Cir.1997) (“an improper applica by law; authorized for example, when tion of guidelines is not a reason to the sentence is “in excess of a statutory knowing invalidate a voluntary provision contrary or otherwise to the appeal rights.”). applicable statute.” A sentence is not illegal if “punishment meted out was Appeal III. Mr. Andis’s not in prescribed excess of Having approach reviewed Circuit’s relevant statutes ... or the terms of the to the waiver appellate rights, we now sentence itself are legally or consti- examine Mr. argument Andis’s tutionally invalid respect.” other spite of his waiver we should allow him to (8th Cir.2002) (internal aрpeal the conditions his re- omitted). citations lease. We find challenged that the condi- We wish to make clear that tions do not an illegal constitute illegal sentence exception to the general and, such, appeal. dismiss his enforceability of an is It undisputed extremely scope exception. narrow Any sen Andis’s waiver imposed tence includes the statutory range within the supervised release,7 is not and he appeal. Specifically, an does not allegation that claim that sentencing judge waiver was misap entered into plied Sentencing unknowingly Guidelines or or involuntarily. abused There is his or her discretion is ap allegation also nо that the district court in peal the face of a appeal valid failed to comply waiver. with Federal Rule of Other explicitly circuits have addressed Criminal 11 Procedure in accepting Mr. See, these situations. e.g., United States v. Andis’s guilty plea. Accordingly, may Brown, (4th Cir.2000) 403 consider Mr. appeal only Andis’s if our emphasize 6. We wish to that a defendant Agreement 7. In the acknowledged Andis challenge illegal sentence on that he "waive[d] all whatev- direct rely and solely does not have to er sentence is imposed.” Because the court post-conviction on his remedies. To the ex- eighteen sentenced Mr. Andis to months of holding incarceration, tent this opinion with conflicts our in "required the court was to im- Rutan, where we illegal stated that "an pose sen- supervised a term of release to follow challenged tence can still 5D1.1, be imprisonment.” under 28 U.S.C. § app. U.S.S.G. n. 1. relief, § corpus Therefore, 2255 for habeas so a defen- Mr. Andis’s waiver included that entirely dant is not portion without recourse from an of his which involved the sentence,” 829-30, erroneous F.2d at imposition supervised of a term release and portion narrow of Rutan is overruled. its conditions. order, as a further condi- The court a miscar- constitute to do so would failure release, supervised to the extent tion of justice. riage of such condition- attempts to make Mr. Andis (1) reasonably to the factors is related the conditions by arguing that showing 3553(a)(1), in set forth section constitute supervised release (a)(2)(B), (a)(2)(D); (a)(2)(C), and claims that the Specifically, he sentence. (2) greater deprivation of involves no illegal condi imposed five district reasonably necessary liberty than is release: supervised on his tions purposes set forth section for the (a)(2)(D); 3553(a)(2)(B),(a)(2)(C), (1) chil- from contact with prohibition age of 18 without dren under pro- permission of the

prior written (3) any pertinent poli- consistent with reports immediate officer and bation cy by the Sentenc- statements issued any officer of ing probation to the pursuant to 28 ing Commissiоn children contact with unauthorized 994(a); U.S.C. 18; age under the discretionary as a any condition set forth (2) any occu- engaging on prohibition probation in section condition profession where

pation, 3563(b)(1) (b)(10) business through under the access to children (b)(12) he has (b)(20), through oth- ap- ‍​​‌​​​​‌​​‌‌‌‌​​‌‌​‌​​‌‌​​‌​‌‌‌‌​‌​‌‌‌‌​‌​‌​​‌‌‌‍prior without written age of 18 ap- it to be er condition considers officer; probation proval propriate. 3583(d).

(3) loitering within 18 U.S.C. prohibition schools, parks, playgrounds, feet of provides the statutory provision This places frequented arcades or other discretion to im court with broad children; court considers to be pose conditions the a term of setting appropriate (4) person, of his to search submission Bass, 121 F.3d release. United residence, office, by pro- or vehicle Cir.1997). If an reasonable upon officer based bation exist, would ex did not this Court suspicion of contraband or evidence super Andis’s the conditions of Mr. amine release; of conditions of of a violation of discretion under an abuse vised release Scott, See United States standard. (5) main- purchase or prohibition on the (describing or other post office box tenance if a district used to determine standard private mailbox without writ- type of imposing its discretion court abused probation of the officer. approval ten release); United supеrvised of conditions 1073, 1075-78 Kent, F.3d length appeal to address Were court (finding that the district we would imprisonment, Mr. Andis’s Bass, discretion); at F.3d its of time abused length need to review the simply (same); v. Prender wheth- United by statute to determine authorized (8th Cir.1992) appeal gast, legal and his er his sentence was case, (same). However, Mr. Andis’s in this summarily based on dismissed should be from this Court Andis, however, prevents waiver appeal- his waiver. supervised his reviewing supervised his re- the conditions of ing the dis- determining whether release and states: statutory provision lease. impos- observes, trict court abused its discretion in instance, for that to ing those conditions. appeal is not a constitutional one and that оught courts to plea agreements treat

This result is consistent with a recent contracts; these. are propositions with Circuit, case from Seventh But, which I Sines, wholeheartedly concur. with 303 F.3d 793 Cir. 2002), respect, I that think that where court an the court addressed al abandons most identical issue. Like those principles, Mr. Andis’s in deciding the case the Agreement, plea agreement Mr. Sines’s way that it does. an appeal contained waiver. Mr. Sines all, First the court attempt makes no fraud, pled guilty to bank but because of a justify its distinction between sentences

prior exploitation conviction for sexual that violate the sentencing guidelines minor, the district court also сon imposed sentences that are A “illegal.” sentence supervised ditions of release that included guideline violates a is no less attendance at sex-offender treatment kind than a sentence that violates stat- program periodic polygraph testing. Indeed, guidelines ute. are authorized appealed, The defendant claiming that he statute, already any had case a completed legal error intensive sex- with respect offender to a program guideline treatment and that he is no less a had not engaged any illegal legal contact with error than a application mistaken a minor in years. Therefore, over tеn he statutory law. argued, the conditions of supervised his Nor guideline is a necessarily error dif- release were reasonably related to his ferent in degree from other kind of rehabilitation or to protection of the legal error. A application mistaken

public. The Seventh Circuit refused to guidelines instance, might, for result in a consider Mr. arguments Sines’s and held sentence that is too long by many years, that the appeal agree while a sentence that statutory exceeds the ment made the conditions of supervised so, might maximum do say, by only one release unreviewable. day. Yet the court holds that a defendant defendant, Andis, Where like Mr. waive his the one does not claim he failed to enter into and not the other. The distinc- and voluntari untenable, tion is makes no ly, or release condi attempt defend it. The court simply tions constituted a miscarriage ‍​​‌​​​​‌​​‌‌‌‌​​‌‌​‌​​‌‌​​‌​‌‌‌‌​‌​‌‌‌‌​‌​‌​​‌‌‌‍justice announces rule. they because based on were some constitu tionally impermissible factor, race, such as Secondly, and fundamentally, more conditions are not to review on while the court professes loyalty to the appeal. Accordingly, Mr. appeal is Andis’s idea that ordinary principles of contract dismissed. ought law apply agreements, it ARNOLD, MORRIS SHEPPARD adhere, again refuses explana- without Judge, Circuit concurring, with whom tion, to the most fundamеntal contract LOKEN,8 Judge, BOWMAN, Chief all, principle namely, RILEY, Judges, join. supported by ought consideration to be great

There is a deal in the fraud, duress, court’s mistake, enforced absent opinion with agree. which to The court some disabling other circumstance. It is 8. The Honorable James B'. Appeals Loken became Eighth for the April Judge Chief the United States Court of 2003. his or right criminal defendant has to trade with have the true that courts certainly agree- right appeal, her accuser is the to and so pleas and duty police to court, improving make far from the lot of that defendants the to ensure ments voluntarily. That is criminal defendants with its interventionist knowingly them rule, out in inquiries actually deprives prop- set them of their function the Procedure which to erty Rule of Criminal and the wherewithal with Federal (d). 11(b), (c), and and, in Rule especially, pater- As is often the case with bargain. ll(b)(l)(N) Indeed, re- specifically moreover, Rule are other policies, nalistic there the well, court to make sure quires including, the inefficiencies created as terms of demonstrates, understands “the judicial energy this case the waiving right the provision plea-agreement deciding that must devoted to be now collaterally attack the sen- appeal or to to “miscarriage a a whether sentence is tence,” and, the rule contem- significantly, (or justiсe” “illegal”) meaning within the whatever on a defen- plates no restrictions that the court draws here. the distinction But appeal rights. ability to waive dant’s Furthermore, utility plea agree- the is convinced that a defendant once a court decision, by today’s is diminished ments voluntarily making a is driven to frequently because courts will be waiver, that its function is com- I believe decide the merits of an avoid to. plete. entangled question of whether being ap- in an “illegal sentence” is involved ways. yet 11 is instructive in other

Rule waiver, way peal much the same it, pleads guilty who is Under a defendant complicated procedural-default rules the fundamental con- made to undеrstand corpus. operated in the law of habeas giving is stitutional he she result, government’s enthusiasm for represented up, including right be wane, reducing further appeal waivers will trial, trial, right jury by counsel at opportunities of criminal defendants witnesses,"the right to cross-examine advantageous bargains. enter into oneself, and the not to incriminate right compel the attendance of wit- right distinc- difficulty applying with expla- court without nesses. Yet the holds amply proposes that the court dem- tion court’s that the nation present circumstances. onstrated sentence, process the due that his sentence violated Mr. Andis claims cannot guarantee, not even сlause does requires that his conditions a statute that solemn, public, always be waived “reasonably supervised release relat- be judi- proceeding a federal counseled before “reasonably ed” to certain “factors” Contrary to what the court cial officer. objec- accomplish certain necessary” to 11(c) asserts, give a district Rule does not 3583(d). Is a sen- tives. See U.S.C. reject authority to most court “the to those stan- tence that does not conform fact, gives it agreements.” not, why isn’t “illegal”? not If it is dards reject kinds of authority only certain court concludes that it? The cir- very under circumscribed reviewing the prevents us from cumstancеs, present here. none of which is which I imposed, a result with why partic- agree, but it doesn’t tell us lack the authori- only Not does the court assigned error is reviewa- ular kind way in the ty plea agreements to restrict Evidently we are now and others are. to, ble reasons not good that it seeks there are making case-by- necessity of put to the so, is that the to do not the least of which put a claim of whether case determination of de- works to the detriment restriction involves or does forward a defendant things that a One of the few fendants. something “illegal called an Cir.1994); involve Britt, sentence.” Cir.1990). sum, In I plea agree- believe It One final observation. is true that a sufficiently ments are different from oth- criminal will not be able to fore- er greater contracts to demand flexibility see all that a district of the errors reasons, in their enforcement. For these might in commit the course sentenc- I concur in opinion of the court. ing. But law of contracts has never required specifically that a risk be foresee- BRIGHT, party’s

able before court will enforce a Judge, concurring Circuit fact, assumption of risk. part one of and dissenting part, with whom the principle purposes McMILLIAN, of a contract is to Judge, joins. Circuit assign the risk of the unforeseen to one I concur in parts I and II majori- of the party sure, or another. To be pleа ty’s opinion in this majority opin- case. The agreement must be entered into knowingly ion carefully correctly and reviews this knowledge with a consequences, circuit’s law on the use of waivers means, but only present con- agreements. Crucially, majori- text, that a defendant must know that one ty reaffirms the limits we imposed consequences of his waivers, use of those provides for a that he or she will have no recourse to the justice miscarriage of exception. This ex- appeals court of in the event of an error on ception is critical explained for reasons by part of the district court. There is no the First Circuit in United States v. Teet- doubt that Mr. Andis knew that here. er: reasons, For foregoing I sim- would caution, however, that because such ply enforce the waiver. waivers are before any made manifesta- tion of sentencing emerges, error appel-

BYE, Judge, concurring. late courts must remain grant free to applaud Judge I Morris Sheppard Ar- relief from them in egregious cases. nold’s doctrinal consistency. prac- As a done, When all is said and such waivers matter, however, tical I doubt criminal are meant bring finality proceed- defendants prescience have the and bar- ings course, conducted ordinary in the gaining power necessary to participate as not to acquiescеnt leave defendants to- full equal players in the contractual tally exposed (howev- vagaries future process Judge Arnold envisions. Apply- harsh, unfair, unforeseeable). er ing pure contract theory in bar- gain context insufficiently (1st accounts Cir.2001); for 257 F.3d 23-24 see also power imbalance of prosecu- Khattak, ‍​​‌​​​​‌​​‌‌‌‌​​‌‌​‌​​‌‌​​‌​‌‌‌‌​‌​‌‌‌‌​‌​‌​​‌‌‌‍between United States v. tors and (3d Cir.2001) defendants. Nor does contract (declining adopt theory acceptably govern disparate “blanket rule prohibiting all review” of consequences to parties should they waivers of given possibility misjudge the risks. I am particularly “unusual circumstances where an error troubled the risk of an egregious amounting justice to miscarriage of sentencing unbounded waiver”). decision that could invalidate the majority also not be foreseen even by diligent offers counsel. guidance courts some sound Prior cases have therefore refused to en- for ensuring that defendants enter into dorse a purely analysis contractual plea agreements corresponding waiv plea bargains. Margalli-Olvera INS, ers and voluntarily. fact, sentencing at by situation. individual opinion authored concurring The exceedingly was candid raises nu- the district court Arnold Sheppard Judge Morris by objections process to in which the explaining carefully considered merous notable, It is I under- majority. imposed. were “As of the conditions position followed the however, it, circuit has condi- that no this is—these are standard stand pro- all review prohibiting probation rule officers recom- blanket tions no There is by the concurrence. posed building in this for this mend to the Court and coherent reaching a clear doubt I stage, And at this know type of offense. poses diffi- illegal sentence of an definition impose judge has refused of no who impossibility. See culties, it is not an but on this state- restrictions.” Based these 493, Marin, 961 F.2d v. United ment, accepted that the court it is clear examples of sen- (providing appear conditions that certain standard of the or in excess оn race tences based the defen- relationship or no have little examples of as statutory penalty maximum dant.9 appellate review for which illegal sentences nonjudicial offi- A can use district court waived). exception for Allowing an is not officers, cers, support probation such as exception that is justice, an miscarriages of functions, long judicial as a judicial “as rule, is the most not allowed swallow re- retains and exercises ultimate officer course of action. prudent Kent, v. sponsibility.” See United States merits, I dissent from Reaching the (8th Cir.2000) (quoting ex The district court majority opinion. Johnson, v. by imposing condi discretion ceeded its (4th Cir.1995)) (emрhasis origi- 808-09 not Andis that do release on Mr. tions of nal). courts should practice of district relationship to either a reasonable bear adopt the recommendations not be of the offense nature and circumstances making spe- probation report without of the de history characteristics regard- and reasoned determinations cific 3583(c) by required 18 U.S.C. fendant special condi- ing applicability 5D1.3(b) of the United States and section of release. tions Manual. See Unit Sentencing Guidelines may have liberty interests Mr. Andis’ Prendergast, 979 F.2d ed States due curtailed without significantly been (8th Cir.1992) (explaining that the 1292-93 court. The by the consideration in release must not terms Andis well imрosed on Mr. conditions liberty than deprivation greater volve a unautho- and thus unreasonable have been necessary goals to fulfill the reasonably remanded this I would have rized law. Sentencing Commis Congress pro- for further district court case to the sion). noted in Prender this circuit of re- the conditions ceedings relating to proba that restrict gast, the conditions “especially fine lease. must be tioner’s freedom United States (quoting Id. at 1293

tuned.” (2d Cir.1986)). Tolla, of Mr. Andis’ release

The conditions crime or his fine tuned to his

were spec- and did not elaboration court offered no respond to the defen- court did 9. The district applied ify special release objection to the conditions of how dant's by commenting, all of these restric- "I think characteris- crime or individual to Mr. Andis’ appropriate for the conduct tions tics. However, engaging was in.”

Case Details

Case Name: United States v. John Robert Andis

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Jun 27, 2003

Citation: 333 F.3d 886

Docket Number: 01-1272

Court Abbreviation: 8th Cir.