7th Circuit: Plea agreement forecloses sentence appeal

February 5, 2016

A man who pleaded guilty in federal court to drug charges is unable to challenge his sentence on appeal based on this plea agreement, the 7th Circuit Court of Appeals ruled Friday.

Erik Solano entered into a written plea agreement with the government that included a waiver of his right to appeal his conviction, sentence or any restitution order on any ground, including ineffective assistance of counsel claims. He also agreed not to contest the manner in which his conviction, sentence or restitution was determined or imposed on any ground on direct appeal or through post-conviction relief.

Two-and-a-half years after he was sentenced to 168 months in prison, he filed a pro se Section 2255 motion to vacate his sentence, asserting two claims of ineffective assistance of counsel. The district court dismissed the petition on timeliness grounds.

“In (Nunez v. United States, 546 F.3d 450, 456 (7th Circ. 2008)) and in other cases, we recognized that an appeal waiver does not always foreclose a defendant’s right to appeal or relieve trial counsel of the responsibility to file an appeal in every case,” wrote Judge Rebecca Pallmeyer of the U.S. District Court for the Northern District of Illinois, sitting by designation.  

“But the exceptions are not available here. Solano does not assert that this plea agreement or his appeal waiver was involuntary or unknowing. Indeed, Solano told both the magistrate judge and the district court that the plea agreement was knowing and voluntary and that he understood the implications of the appeal waiver. Nor are there any ambiguities or limitations in the waiver that would preclude Solano with a right to appeal his conviction or sentence on any ground.

“Solano waived his right to appeal his conviction and sentence to any court on any ground, including any claim of ineffective assistance of counsel. He also agreed not to contest his conviction or sentence based on alleged ineffective assistance of counsel under 28 U.S.C. Section 2255. Nor has Solano suggested that the district court relied on impermissible factors in his sentence or imposed a sentence that exceeds that statutory cap,” she wrote.

“Solano’s only viable argument, which he made for the first time at oral argument, is that we should reconsider Nunez. We decline to do so.”

The case is Erik Solano v. United States of America, 15-1290.


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