Plea agreement bars defendant from appealing sentence

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A defendant who agreed to waive his right to appeal his sentence after pleading guilty to a drug offense was unable to convince the 7th Circuit Court of Appeals that he should be allowed to pursue his ineffective assistance of counsel claim.

Garrett Smith pleaded guilty to possessing with the intent to distribute 500 grams or more of cocaine. As part of his plea agreement – which he signed and told the judge he understood – Smith waived his right to appeal his sentence on any ground, unless the appeal dealt with ineffective assistance of counsel relating to the waiver or its negotiation.

At the sentencing hearing, Smith objected to the presentence report’s finding that he qualifies as a career offender because of a prior drug conviction and state court conviction of reckless homicide. The judge asked for both sides to address Smith’s objection and reset the sentencing hearing for two weeks later. That’s when the judge sentenced Smith to 168 months in light of his cooperation, which was lower than the advisory sentencing range based on Smith’s status as a career offender.

Smith now appeals his sentence on the basis that he is not a career offender. He argued the conviction for reckless homicide doesn’t qualify as a crime of violence for purposes of the career offender guideline, so he’s entitled to a shorter sentence.

“Smith instead urges us to recognize a new exception for the ‘patent’ ineffectiveness of counsel at sentencing. In his view, it should have been obvious to Smith’s counsel below that reckless homicide does not qualify as a crime of violence, and given the significant impact of the career offender determination of Smith’s sentencing range, his counsel was not merely ineffective, but patently so, in neglecting to challenge it. On that basis, he urges us not to enforce the waiver,” Judge Ilana Rovner wrote.

“We can find no support in the language of the plea agreement or in our cases for such an exception.”

No matter how clear a sentencing error the defendant believes the District Court may have committed or however obvious an error he believe his counsel committed in not objecting to the court’s sentencing decision, when the defendant has knowingly and voluntarily waived his right to appeal such errors, the obviousness of the error does not support overlooking the waiver, the 7th Circuit ruled in United States of America v. Garrett Davarrass Smith, 12-3350.


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  1. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  2. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

  3. Paul Hartman of Burbank, Oh who is helping Sister Fuller with this Con Artist Kevin Bart McCarthy scares Sister Joseph Therese, Patricia Ann Fuller very much that McCarthy will try and hurt Patricia Ann Fuller and Paul Hartman of Burbank, Oh or any member of his family. Sister is very, very scared, (YES, I AM) This McCarthy guy is a real, real CON MAN and crook. I try to totall flatter Kevin Bart McCARTHY to keep him from hurting my best friends in this world which are Carolyn Rose and Paul Hartman. I Live in total fear of this man Kevin Bart McCarthy and try to praise him as a good man to keep us ALL from his bad deeds. This man could easy have some one cause us a very bad disability. You have to PRAISAE in order TO PROTECT yourself. He lies and makes up stories about people and then tries to steal if THEY OWN THRU THE COURTS A SPECIAL DEVOTION TO PROTECT, EX> Our Lady of America DEVOTION. EVERYONE who reads this, PLEASE BE CAREFUL of Kevin Bart McCarthy of Indianapolis, IN My Phone No. IS 419-435-3838.

  4. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.

  5. I had a hospital and dcs caseworker falsify reports that my child was born with drugs in her system. I filed a complaint with the Indiana department of health....and they found that the hospital falsified drug screens in their investigation. Then I filed a complaint with human health services in Washington DC...dcs drug Testing is unregulated and is indicating false positives...they are currently being investigated by human health services. Then I located an attorney and signed contracts one month ago to sue dcs and Anderson community hospital. Once the suit is filed I am taking out a loan against the suit and paying a law firm to file a writ of mandamus challenging the courts jurisdiction to invoke chins case against me. I also forwarded evidence to a u.s. senator who contacted hhs to push an investigation faster. Once the lawsuit is filed local news stations will be running coverage on the situation. Easy day....people will be losing their jobs soon...and judge pancol...who has attempted to cover up what has happened will also be in trouble. The drug testing is a kids for cash and federal funding situation.