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Waived appellate rights enforceable despite unusual waiver language, 7th Circuit rules

March 5, 2019

A man who explicitly waived his right to appeal his decade-long sentence was denied his appeal of that sentence Monday when the 7th Circuit Court of Appeals determined the waiver of his appellate rights was valid despite the “unusual” language of his plea agreement.  

Jason Galloway pleaded guilty to possession of ammunition as a felon following a January 2016 domestic violence incident with his ex-wife and subsequently signed a written plea agreement that stated he waived his right to appeal his conviction. The waiver also stated that if the court agreed to a sentence “higher or lower than any recommendation of either party,” Galloway waived the right to appeal the sentence.

During sentencing, Galloway received a 120-month term, which was lower than a probation officer’s suggested guideline range of 130 to 162 months but was in-line with what the government recommended. Galloway then appealed his sentence despite the waiver in his plea agreement, arguing the waiver, according to its own terms, did not apply.

Specifically, Galloway alleged the district court did not impose a “sentence higher or lower than any recommendation of either party” because his 120-month term followed the government’s recommendation. He also noted he did not make any sentencing “recommendation” at all.

Though it found the “any recommendation” language in Galloway’s plea agreement unusual, the 7th Circuit nevertheless found no authority for Galloway’s “restrictive” interpretation of the term “recommendation.” The court specifically rejected Galloway’s assertion that his lawyer’s sentencing argument did not constitute a “recommendation” because the argument did not include a specific proposal for a certain length of incarceration.

The 7th Circuit noted that while sentencing recommendations may take the form of a requested term of imprisonment, the word “recommendation,” as used in a federal context, does not exclusively refer to a proposed length of custody.

“Although Galloway’s lawyer may not have spelled out the number of months he proposed Galloway should spend behind bars, he unmistakably advocated for a below-guideline sentence,” Circuit Judge Michael Brennan wrote.

“…Galloway’s interpretation proposes he could have his cake and eat it too: defense counsel could advocate for a below-guideline prison term so long as he avoided magic words triggering the appellate waiver,” Brennan continued. “Such a strained interpretation of ‘recommendation’ is not reasonable.”

Additionally, the court found that although the waiver was anomalous, the unusual language did not “render Galloway’s voluntary and knowing waiver of his appellate rights as any less valid or enforceable.”

Thus, the 7th Circuit declined to reach the merits of Galloway’s arguments because he waived his appellate rights in United States of America v. Jason Galloway, 18-1304.

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