by Douglas Ankney

The U.S. Court of Appeals for the Seventh Circuit clarified its uniform procedure for disposition of cases in which a plea agreement includes an appeal waiver and the defendant nevertheless files a notice of appeal.

Dinish Watson pleaded guilty to federal charges pursuant to the terms of a plea agreement that waived, subject to certain exceptions not relevant to this appeal, his right to appeal any aspect of his conviction or sentence. After sentencing, Watson directed his counsel to file a notice of appeal. Counsel did so, and then the Seventh Circuit appointed appellate counsel and set a briefing schedule allowing 90 days for the opening brief.

The Government moved to dismiss the appeal based on the appeal waiver in the plea agreement and asked the Court to abandon its current practice governing this situation under United States v. Manning, 755 F.3d 455 (7th Cir. 2014), of treating motions to dismiss as notices of intent to enforce the waiver. Watson’s counsel responded to the motion to dismiss, urging the Court to follow Manning.

The Court observed that the terminology of “appeal waiver” is “a touch too loose and imprecise” because a defendant does not, in fact, waive his right to file a notice of appeal. See Garza v. Idaho, 139 S. Ct. 738 (2019). Rather, he forfeits only his ability to assert particular claims on appeal because some claims, the Court explained, “aways remain available, either by the terms of the agreement or because we will not enforce a waiver of particular rights.” See, e.g., United States v. Adkins, 743 F.3d 176 (7th Cir. 2014). 

In addition, criminal defendants are entitled to effective assistance of counsel on direct appeal. See Evitts v. Lucey, 469 U.S. 387 (1985). The Court stated that “no doubt a first order of business for defense counsel on appeal will be to consider whether a waiver of appeal in a plea agreement leaves the defendant with any non-frivolous grounds for appeal.” If no non-frivolous issues exist, defense counsel will discuss with the defendant dismissing the appeal voluntarily (as occurred in the instant case). See Fed. R. App. P. 42(b); 7th Cir. R. 51(f).

But in those instances where the defendant chooses to press ahead with the appeal, defense counsel’s obligation to his client must be balanced against his professional duty to the court to refrain from frivolous litigation. See, e.g., United States v. Patridge, 507 F.3d 1092 (7th Cir. 2007). The Seventh Circuit, applying the Supreme Court’s guidance on striking the appropriate balance between the two foregoing duties in Anders v. California, 386 U.S. 738 (1967), requires appointed counsel who deem an appeal frivolous to “file a formal brief explaining the nature of the case, considering the issues that the appeal might involve, and exploring why each would go nowhere if argued.” See United States v. Edwards, 777 F.2d 364 (7th Cir. 1985). The defendant may then file, within 30 days, a response contesting counsel’s conclusion. See 7th Cir. R. 51(b). After that 30-day deadline has passed and the Government hasn’t filed a submission, the Anders brief together with any response are submitted to a panel, which issues a decision accepting counsel’s conclusions — or rejecting it and ordering further briefing from the parties. At that time, the Government may move for dismissal based on the waiver as well as stand on the waiver in its brief.

The Government in the instant case proposed a modification to the current procedure that would allow it to move for dismissal early in the process, suspend briefing, and require defense counsel to respond to the motion within 30 days (with liberal extensions) to either identify arguments counsel intends to make to escape the waiver or to agree with the motion and then follow the Anders process. Otherwise, according to the Government, “it will find itself having to file briefs arguing for both enforcement of the waiver and, in the alternate, affirmance on the merits even in cases where it is obviously entitled to dismissal.”

While the Court agreed that the Government should not have to submit full briefs in every case where the defendant agreed to an appeal waiver (defeating the purpose of the waiver, i.e., saving resources), the Court observed that most of these appeals result in voluntary dismissals, and for those that do not, in the last year alone under the current practice, 12 Anders orders enforced waivers. The Court concluded that nothing about its current practice requires any meaningful fixing, stating that some non-frivolous but waived claims may end up being fully briefed, but “this possibility is just a necessary cost of the sometimes difficult task of separating waived and unwaived arguments.” See Garza.

The Court announced that it adopts the following procedures for resolving cases with appeal waivers where Anders applies:

“1. We continue to discourage the government from moving to dismiss before the defendant has filed his brief. A motion filed before the opening brief will be construed as only a notice of intent to stand on the waiver.

2. A notice of intent does not alter the briefing schedule or obligations of the defendant’s counsel. If counsel sees no way to proceed with an appeal, she should move to withdraw and file an Anders brief. The court will resolve the motion to withdraw consistent with Circuit Rule 51.

3. If counsel instead files a brief raising arguments on the merits, the government may then move to dismiss the appeal based on the waiver (without any accompanying merits briefing) and should do so well before its own brief deadline. In the hopefully rare event that the appellant’s brief ignores the waiver or offers only flimsy arguments for escaping it, a motions panel will dismiss the appeal after considering any response.

4. The government is not obligated to file either a notice of intent or a motion to dismiss to preserve its rights under the agreement. If it does take either action, or if a motions panel denies its motion to dismiss, it remains free to argue for enforcement of the waiver in its own brief.”

Accordingly, the Court denied the Government’s motion to dismiss, except to the extent that the motion was construed as a notice of intent to enforce Watson’s appeal waiver. See: United States v. Watson, 48 F.4th 536 (7th Cir. 2022). 

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