In United States v. Atherton, --- F.4th ---, No. 21-30266 (9th Cir. 2024), the defendant pleaded guilty with a plea agreement that waived his right to appeal the sentence.
He then appealed, arguing the district court violated his due process rights by relying on false and unreliable information at sentencing.
A divided Court held that a due process challenge to sentencing, like Atherton’s, falls within the appeal waiver limitation identified in United States v. Wells, 29 F.4th 580 (9th Cir. 2022), for “a challenge that the sentence violates the Constitution.” Thus, the Court considered the appeal on the merits, but affirmed.
On the waiver issue, the majority explained:
[W]e have repeatedly permitted defendants to raise due process challenges to their sentence despite the existence of a valid appeal waiver."
[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. That, in essence, is what Wells held, as it permitted enforcement of an appeal waiver of “any underlying constitutional right that was expressly and specifically waived.” 29 F.4th at 587. That limitation to clearly enunciated, specific waivers avoids providing carte blanche to sentencing courts to trample constitutional rights during the all-important sentencing proceedings, and at the same time assures that the defendant’s quid pro quo for the prosecutor’s plea agreement concessions is limited to specific circumstances contemplated in advance.
The concern that a defendant should not—absent a clear statement to the contrary—be taken to waive the right to unknown and unanticipated constitutional violations occurring during sentencing applies equally to procedural and substantive violations. There is no basis for limiting the Wells exception to one and not the other.
