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Waiver of Appeal Doesn't Apply to Terms of Release Modification

By Robyn Hagan Cain | Last updated on

When a criminal defendant waives his right to appeal, the courts take him at his word that he is, in fact, waiving appeals.

A lot of the defendants don't think that "waiving appeal" means what the courts think it means (Inconceivable!) and they appeal anyway. It usually doesn't work. But a Third Circuit concluded this week that a waiver of appeal did not bar an appeal of an order modifying the terms and conditions of supervised release.

Roger Wilson pleaded guilty to two drug charges. The plea agreement included a waiver of his right to appeal or collaterally challenge his conviction and sentence except in the event that the government appealed, the sentence exceeded the applicable statutory limits, or the sentence unreasonably exceeded the sentencing guideline range determined by the district court.

Wilson was sentenced to 65 months, to be followed by 6 years of supervised release. He appealed, but there was that pesky waiver. So he lost.

(Lest you think we pulled a bait-and-switch -- we did promise you a winning appeal -- there are multiple appeals in this case.)

Three months after Wilson started his supervised release, his Probation Officer filed an application to modify the terms and conditions of his supervised release to include participation in a mental health program. The district court granted the request. And Wilson, again, appealed.

The Third Circuit found that Wilson's modification appeal didn't fall within the scope of his appellate waiver because he did not explicitly waive a right to appeal a later modification of his "sentence," and such a waiver could not be presumed or inferred.

But that's where Wilson's luck ran out.

On the merits of the appeal, the appellate court reasoned that Wilson received a full and fair hearing in accordance with Rule 32.1, and the district court gave meaningful consideration to the §3553(a) factors. Therefore, the lower court did not abuse its discretion in modifying the terms of his release.

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