The Ninth Circuit clarifies that the “illegal sentence” exception to appellate waivers encompasses constitutional procedural challenges such as Due Process challenges.
Case: United States v. Atherton, No. 21-30266, decided July 3, 2024
Panel: Marsha S. Berzon, Jacqueline H. Nguyen, and Eric D. Miller, Circuit Judges
Author: Judge Berzon; Judge Miller dissented
Keith Atherton pleaded guilty to production of child pornography pursuant to a plea agreement which, with two exceptions, waived “any aspect of the conviction and sentence on any grounds.” He was sentenced to the statutory maximum of 30 years. On appeal, he argued that the district court violated his due process rights during sentencing by relying upon false or unreliable information.
The government argued that Atherton’s appeal was barred by his appellate waiver and that the illegal-sentence exception, as clarified in United States v. Wells, 29 F.4th 580 (9th Cir. 2002), did not apply. In Wells, the Ninth Circuit held that a waiver of the right to appeal a sentence does not apply if the sentence exceeds the permissible statutory penalty, or if (1) the defendant raises a challenge that the sentence violates the Constitution; (2) the constitutional claim directly challenges the sentence itself; and (3) the constitutional challenge is not based on any underlying constitutional right that was expressly and specifically waived by the appeal waiver as part of a valid plea agreement.
The majority held that while Wells drew a dividing line between constitutional violations affecting only the sentence and those affecting the conviction, it did not distinguish between constitutional violations concerning the substance of a sentence and those involving the procedure via which the sentence was imposed. A challenge that a sentence is invalid because it was the result of an unconstitutional process meets all three Wells requirements. Indeed, like several other circuits, the Ninth Circuit has repeatedly permitted defendants to raise constitutional procedural challenges to their sentence despite valid appeal waivers, such as sentences imposed on impermissible, discriminatory grounds, in violation of the Equal Protection Clause, or sentences imposed in absentia, in violation of Due Process. Any other rule would insulate the denial of a defendant’s constitutional rights at sentencing from appellate review, since the defendant signed the appellate waiver before sentencing but the right to appeal only comes into existence until after sentencing. “[G]iven that the sentencing proceeding has not yet occurred at the time an appeal waiver is entered, a presentencing waiver should not be taken as waiving the right to a constitutionally imposed sentence absent a clear statement to that effect, including specifying the constitutional rights waived.”
Atherton’s claim met all three Wells requirements and was not barred by his appellate waiver. His claim that the district court relied on false or unreliable information at sentencing directly challenged his sentence (and not his conviction) on Due Process grounds, and it was not based on any right that Atherton expressly waived in his plea agreement. The claim, however, failed on plain error review. The district court’s statements about the state of sex offender research and community-based treatment resources were not based on unfounded assumptions or groundless inferences, and it was not plain that its passing comment that Atherton may have committed additional crimes against his minor victim increased his sentence.
Judge Miller dissented. In his view, under Wells, the only challenges surviving an appeal waiver are “challenges that the terms of the sentence itself are unconstitutional” (such as First Amendment or Due Process vagueness challenges to supervised release conditions) not that the sentencing process was improper. He suggests that concerns about racially discriminatory sentencing should be addressed though a narrowly tailored exception, consistent with the Supreme Court’s treatment of racially discriminatory practices in other contexts and the case law of several other circuits. He decries the scope of the majority’s rule, and anticipates that it will add uncertainty and confusion to the plea-negotiation process.
The decision is here.