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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. "...not those committed in the heat of an argument." If I ever see a man physically abusing a woman or a child and I'm close enough to intercede I will not ask him why he is abusing her/him. I will give him a split second to cease his attack and put his hands in the air while I call the police. If he continues, I will still call the police but to report, "Man down with a gunshot wound,"instead.

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  3. So this firebrand GOP Gov was set free by a "unanimous Supreme Court" , a court which is divided, even bitterly, on every culture war issue. WHAT A RESOUNDING SLAP in the Virginia Court's face! How bad must it have been. And all the journalists, lap dogs of the status quo they are, can do is howl that others cannot be railroaded like McDonald now??? Cannot reflect upon the ruining of Winston and Julia's life and love? (Oh I forget, the fiction at this Ministry of Truth is that courts can never err, and when they do, and do greatly, as here, why then it must be ignored, since it does not compute.)

  4. My daughter is a addict and my grandson was taken by DCS and while in hospital for overdose my daughter was told to sign papers from DCS giving up her parental rights of my grandson to the biological father's mom and step-dad. These people are not the best to care for him and I was never called or even given the chance to take him, but my daughter had given me guardianship but we never went to court to finalize the papers. Please I have lost my daughter and I dont want to lose my grandson as well. I hope and look forward to speaking with you God Bless and Thank You for all of your help

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