Fifth Circuit Court Cases - Case Law and Opinions from the 5th Circuit Federal Court - Court of Appeals

	ROMINGER LEGAL
		Fifth Circuit Court of Appeals Opinions - 5th Circuit
					Need Legal Help?
					Need Legal Help?
LEGAL RESEARCH CENTER
LEGAL RESEARCH CENTER			LEGAL HEADLINES - CASE LAW - LEGAL FORMS	NOT FINDING WHAT YOU NEED? -CLICK HERE

This opinion or court case is from the Fifth Circuit Court or Appeals. Search our site for more cases - CLICK HERE

LEGAL RESEARCH

COURT REPORTERS

PRIVATE INVESTIGATORS

PROCESS SERVERS

DOCUMENT RETRIEVERS

EXPERT WITNESSES

Find a Private Investigator

Find an Expert Witness

Find a Process Server

Case Law - save on Lexis / WestLaw.

Legal News - Legal Headlines

UNITED STATES COURT OF APPEALS
for the Fifth Circuit
_____________________________________
No. 91-4627
_____________________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
BRIAN MELANCON,
Defendant-Appellant.
______________________________________________________
Appeal from the United States District Court
for the Eastern District of Texas
______________________________________________________
(September 3, 1992)
Before JOLLY, and DUHÉ, Circuit Judges and ROBERT M. PARKER,
District Judge.1
DUHÉ, Circuit Judge:
Defendant-Appellant Brian Melancon seeks review of his
sentence to 108 months imprisonment for conspiring to distribute
methylenedioxymethamphetamine. Because Melancon waived his right
to appeal as part of his plea agreement, we dismiss.
Appellant was indicted for conspiring to distribute
methylenedioxymethamphetamine (MDMA or "ecstasy") in September
1990. Appellant reached a plea agreement with the Government by
July 1991. Pursuant to that agreement, Appellant pleaded guilty to
conspiracy to distribute MDMA and the parties stipulated that he
1 Chief Judge of the Eastern District of Texas, sitting by
designation.

had possessed 36,000 tablets of the drug. Also as part of the plea
agreement, Appellant waived his right to appeal his sentence.
The Government contends that in light of this waiver, we should
dismiss Appellant's appeal. We agree.
The right to appeal is a statutory right, not a constitutional
right. Abney v. United States, 431 U.S. 651, 656 (1977); 18 U.S.C.
§ 3742; 28 U.S.C. § 1291. The Supreme Court has repeatedly
recognized that a defendant may waive constitutional rights as part
of a plea bargaining agreement. Town of Newton v. Rumery, 480 U.S.
386, 393 (1987). It follows that a defendant may also waive
statutory rights, including the right to appeal. We so held in
United States v. Sierra, No. 91-4342, slip op. at 2 (5th Cir. Dec.
6, 1991) (copy attached), in which the defendant waived the right
to appeal her sentence in exchange for a limitation on her maximum
term of imprisonment. Several circuits similarly have enforced
such waivers. United States v. Rutan, 956 F.2d 827, 829 (8th Cir.
1992); United States v. Navarro-Botello, 912 F.2d 318, 321-22 (9th
Cir. 1990), cert. denied, 112 S. Ct. 1488 (1992); United States v.
Wiggins, 905 F.2d 51, 52-54 (4th Cir. 1990).2 But, as we
recognized in Sierra, the waiver must be informed and voluntary.
Sierra, slip op. at 3; Arrastia v. United States, 455 F.2d 736, 739
(5th Cir. 1972); United States v. Wessells, 936 F.2d 165, 167 (4th
Cir. 1991).
2 The seventh circuit has also upheld waivers of the right to
appeal. The waiver in question was not part of a plea agreement,
but made in a motion to dismiss a previous appeal. Johnson v.
United States, 838 F.2d 201, 203-04 (7th Cir. 1988).
2

Appellant does not assert that his waiver anything less than
voluntary and, after de novo review of the record, we are satisfied
that it was informed. As directed by Rule 11 of the Federal Rules
of Criminal Procedure, the district court held a hearing at which
it reviewed the charges and plea agreement with Appellant and his
counsel. The review of the plea agreement included the following
colloquy concerning Appellants's wavier of the right to appeal:
The Court: [You understand] that paragraph
six of this and this is very important that
you knowingly, that means you know what you
are doing, and by reasoning, have exercised
the choice to intelligently and voluntarily
would waive the right to appeal the sentence
imposed in this case on any ground, including
the right of appeal conferred by Title 18,
United States Code, section 3742, in exchange
for the concessions made by the United States
of America in this agreement, do you
understand that?
Defendant Melancon: Yes, sir.
The district court informed Appellant of the statutory maximum
penalty of twenty years, the imposition of supervised release, and
the use of the sentencing guidelines. The court also stated that
it was not bound by any agreement between the parties regarding
sentencing and explained its authority to depart from the guideline
sentencing range.
Although Appellant's plea agreement differs from the one
enforced in Sierra in that Appellant was not promised a specific
sentence, the uncertainty of Appellant's sentence does not render
his waiver uninformed. See Rutan, 956 F.2d at 830; Wiggins, 905
F.2d at 52. Appellant understood that the court had exclusive
authority to set the sentence. He knew that the court would do so
3

in accordance with the sentencing guidelines and that the court had
the power to depart from the guideline recommendation. Appellant
was also aware of the maximum terms of imprisonment and supervised
release applicable to his crime.3 Most important, he knew that he
had a "right to appeal his sentence and that he was giving up that
right." Rutan, 956 F.2d at 830.
Appellant notes that at his sentencing hearing, the district
court advised him that he had the right to appeal his conviction
and sentence. He contends that this misstatement negates the
knowingness of his waiver and proves that the district court did
not believe the waiver was valid. The court's statements, however,
were made four months after Appellant entered into the plea
agreement with the Government; they could not have influenced
Appellant's decision to plead guilty. Furthermore, any alleged
uncertainty on behalf of the district court as to the legality of
the agreement does not affect our determination that Appellant's
waiver was voluntary, knowing, and permissible. See Rutan, 956
F.2d at 830.
Finally, Appellant argues that the Government relinquished its
right to enforce the agreement because it failed to correct the
court's mistake at sentencing. The Government's inaction, though
not commendable, did not constitute a breach of the agreement. The
Government has timely notified this Court of Appellant's waiver,
3 The district court ultimately imposed a sentence within the
range described. We do not address, therefore, the question
whether Appellant knowingly waived the right to appeal a sentence
contrary to the district court's assurances.
4

and thus has preserved its right to enforce the agreement. But
see, United States v. Vogt, 901 F.2d 100, 102 (8th Cir. 1990)
(Government could not enforce plea agreement after it delayed in
complaining of breach and continued to accept agreement's
benefits.).

We hold that a defendant may, as part of a valid plea
agreement, waive his statutory right to appeal his sentence.
Appellant voluntarily and knowingly entered such an agreement,
waiving his right to appeal. His appeal is, therefore,
DISMISSED.
Nothing in this opinion, however, should be interpreted as
indicating that a district court is not free to determine whether
plea waivers of the right to appeal are unacceptable. We recognize
that there may be sound policy reasons for refusing to accept such
waivers, and that district courts might disagree with the policy
choice made by the court in this case to accept a plea agreement
appeal waiver. Today, we simply decide that this district court
operated within its discretion in accepting the plea agreement
appeal waiver; and we note that a district court's refusal to
accept such a waiver likewise would be within its discretion.
_________________________________________________________________
Parker, District Judge,**** concurring specially:
I concur specially because I cannot dissent. This panel is
**** Chief Judge, Eastern District of Texas, sitting by
designation.
5

bound by the unpublished, per curiam opinion, United States v.
Sierra, No. 91-4342 (5th Cir. Dec. 6, 1991).1 Unfortunately, the
rule articulated in that decision compels me to find that Appellant
Melancon's plea agreement waiver of his right to appeal was a
knowing, intelligent and voluntary act. I write separately to
express why I think the rule embraced by this Circuit in Sierra is
illogical and mischievous -- and to urge the full Court to examine
the "Sierra rule," and to reject it.2
1 See Wilson v. Taylor, 658 F.2d 1021, 1034 (5th Cir. 1981);
Pruitt v. Levi Strauss & Co., 932 F.2d 458, 465 (5th Cir. 1991)
(respecting Fifth Circuit Local Rule 47.5.3).
2 Aside from the question of Sierra's wisdom, or lack thereof,
I note too the problems inherent in giving precedential effect to
unpublished opinions. See 5th Cir. R. 47.5.3. Since, by
definition, a decision is unpublished only if it "has no
precedential value" (5th Cir. R. 47.5.1.), making such a decision
binding runs the risk of having it unintentionally make new law.
Sierra does not, in fact, merely reiterate settled principles of
law, but rather presumes to settle -- through stare decisis -- the
unsettled. This (attempted) appeal "is a prime example of the
complications caused by this Court's adherence to the rule that
unpublished opinions are binding precedent." Pruitt v. Levi
Strauss & Co., 932 F.2d 458, 467 n.2 (5th Cir. 1991) (Johnson, J.
concurring in part and dissenting in part) (citing 5th Cir. R.
47.5.3).
Because the Sierra opinion is unpublished and unavailable,
Appellant Melancon may have been completely unaware that this Court
had embraced the rule articulated therein. (While the government
managed to cite Sierra in its brief, the opinion cannot be found in
the Federal Reporter and cannot be obtained through the two public
computerized legal networks.) Yet Sierra does not simply reaffirm
the law of the Circuit. The Fifth Circuit case Sierra cites for
the proposition that "[t]o be valid, the waiver of the right to
appeal must be an informed waiver" -- Arrastia v. United States,
455 F.2d 736, 739 (5th Cir. 1972) -- did not settle the question
posed by Sierra. Arrastia addresses a defendant's waiver of the
right to appeal his post-trial conviction -- a fundamentally
different circumstance from the one presented in Sierra, which
concerns the propriety of a plea agreement waiver of the right to
appeal, including the right to appeal a supposedly Guidelines-
limited sentence yet to be imposed.
6

In Sierra, this Circuit adopted the rule previously
promulgated in other circuits -- that guilty plea provisions
calling upon the defendant to waive his or her right to appeal are
valid as long as this waiver is "informed and voluntary." The
following syllogism, as reiterated in today's opinion, underlies
this rule: "The right to appeal is a statutory right, not a
constitutional right.[ ] The Supreme Court has repeatedly
recognized that a defendant may waive constitutional rights as part
of a plea bargaining agreement.[ ] It follows that a defendant
may also waive statutory rights, including the right to appeal."
(citations omitted) (emphasis added)
In addition to Sierra, today's majority opinion relies on the
decisions in three other circuits to support the conclusion that
the waiver at issue in this case is acceptable. But only the
Eighth Circuit opinion in United States v. Rutan, 956 F.2d 827 (8th
Cir. 1992), has emerged since Sierra was decided. The cursory
Rutan decision adds nothing substantial to the analysis of the
issue we confront; Rutan, like Sierra, merely follows the
inadequately reasoned decisions from the Fourth and Ninth Circuits
to which the Court today again looks for support. So, today's
majority opinion simply recasts Sierra, adding, in my view, only
one more ill-judged decision by another circuit to the faulty
syllogism embraced in Sierra.
Today's opinion, like Sierra before it, is a prime
illustration of the risk run by following the reasoning of other
circuits on important and unsettled issues without undertaking a
7

thorough, independent analysis of whether the logic of the other
circuits is flawed. Just because other circuits have said a ruling
is cut from the cloth of reason does not always mean that it is.
This Circuit should speak up when the "emperors" of other circuits
are wearing no clothes.3 The rule articulated in Sierra is clearly
unacceptable, even unconstitutional policy: the "Sierra rule"
manipulates the concept of knowing, intelligent and voluntary
waiver so as to insulate from appellate review the decision-making
by lower courts in an important area of the criminal law. And it
seeks to accomplish this abnormal gain in "speed" and "finality" by
thwarting congressional limitations on the courts' sentencing power
and cramping the constitutional rights of those who succumb to plea
agreement waivers of the right to appeal.
It matters not that this is a drug case. It matters not that
this (attempted) appeal may well be without merit on its
substantive points. It matters that we take care to see that the
so called "war on drugs" not count among its casualties
constitutional integrity.
I. Sierra's Futuristic "Knowing and Intelligent" Waiver
As an initial matter, I do not think that a defendant can ever
knowingly and intelligently waive, as part of a plea agreement, the
right to appeal a sentence that has yet to be imposed at the time
he or she enters into the plea agreement; such a "waiver" is
inherently uninformed and unintelligent. The Sierra Court followed
3 ". . . arguments, like men, are often pretenders." Plato,
quoted in Irving M. Copi & Carl Cohen, Introduction to Logic 91
(8th ed. 1990).
8

the Fourth and Ninth Circuits in holding that a waiver of the right
to appeal one's sentence is "knowing" and "informed" as long as the
accused realizes that the effect of this waiver is that he or she
will not be able to appeal. Accordingly, today's majority opinion
states (quoting United States v. Rutan, 956 F.2d 827, 830 (8th Cir.
1992)): "[Appellant Melancon] knew that he had a 'right to appeal
his sentence and that he was giving up that right.'" But this
roundabout conclusion -- first articulated by the Fourth Circuit in
United States v. Wiggins, and followed so far by the courts
subsequently confronting the issue -- misapprehends the nature of
the requirement that waivers of important rights be knowing and
intelligent.4
In the typical waiver cases, the act of waiving the right
occurs at the moment the waiver is executed. For example: one
waives the right to silence, and then speaks; one waives the right
to have a jury determine one's guilt, and then admits his or her
guilt to the judge. In these cases, the defendant knows what he or
4 The fallacious syllogism embraced in Sierra -- and readopted
in today's opinion -- was created in the Fourth Circuit's ill-
conceived case, United States v. Wiggins, 905 F.2d 51, 52-54 (4th
Cir. 1990), cited in United States v. Sierra, No. 91-4342, at p. 3
(5th Cir. Dec. 6, 1991). The Ninth Circuit case upon which Sierra
rests, United States v. Navarro-Botello, 912 F.2d 318 (9th Cir.
1990), essentially follows without question the illogic of Wiggins.
In their 1991 (majority) opinions on the subject of plea agreement
waivers of appellate rights, the Fourth and Ninth Circuits simply
follow themselves -- i.e., adding but another layer of specious
reasoning to this subject. See United States v. Wessells, 936 F.2d
165, 167-168 (4th Cir. 1991); United States v. Bolinger, 940 F.2d
478, 479-480 (9th Cir. 1991). The Eighth Circuit's recent case --
United States v. Rutan, 956 F.2d 827 (8th Cir. 1992) -- in
following the misbegotten syllogism of Wiggins, commits the same
errors as Sierra; yet today this Court cites Rutan as justification
for repeating Sierra's mistakes.
9

she is about to say, or knows the nature of the crime to which he
or she pleads guilty. See Marshall v. Lonberger, 459 U.S. 422,
436, 103 S.Ct. 843, 852 (1983) (in order for plea agreement to be
valid, accused must have notice of the nature of the charge);
Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct 1019, 1023 (1938)
(defining waiver as "an intentional relinquishment or abandonment
of a known right or privilege.") (emphasis added). Cf. McKinney v.
10

United States, 403 F.2d 57, 59 (5th Cir. 1968) ("the right to
appeal should not be considered as having been waived or abandoned
except where it is clearly established that such is the case.")
(emphasis added). While one cannot fully know the consequences of
confessing or pleading guilty, one does know what is being yielded
up at the time he or she yields it.
Like the Court in Sierra, today my colleagues cite a typical
waiver case -- Newton v. Rumery, 480 U.S. 386, 107 S.Ct. 1187
(1987) -- for the categorical proposition that one may waive a
constitutional right as part of a plea bargaining agreement. Cf.
United States v. Sierra, No. 91-4342, at p. 3 (5th Cir. Dec. 6,
1991). But in Newton, the right waived was the right to sue under
42 U.S.C. § 1983. Thus, the waiver in Newton, too, was of a known
quantity: a lawsuit -- of which the one waiving had full
knowledge, and over which the one waiving exercised control.
Similarly, the seminal case for the fallacious syllogism
embraced by Sierra -- United States v. Wiggins, 905 F.2d 51, 52-54
(4th Cir. 1990) -- cites, for the proposition that statutory rights
are waivable, the Fourth Circuit's earlier decisions in: United
States v. Clark, 865 F.2d 1433, 1437 (4th Cir. 1989) (en banc); and
United States v. Sheffer, 896 F.2d 842, 847 (4th Cir. 1990). But
again, in both of these earlier Fourth Circuit cases, known
quantities were waived. In Clark, the defendants waived their
statutory rights to an immediate detention hearing (because they
desired to remain in custody for their own protection). In
Sheffer, what the
11

defendant waived by persisting in his guilty plea, despite
disagreement over the import of a paragraph in his plea agreement
(a paragraph concerning what sort of recommendation the United
States Attorney's Office would make respecting the judge's
Guidelines sentencing of the defendant), was the right to appeal
the already known (i.e., pre-waiver) issue of the proper
interpretation of that paragraph.5
The situation is completely different when one waives the
right to appeal a Guidelines-circumscribed sentence before the
sentence has been imposed. What is really being waived is not some
abstract right to appeal, but the right to correct an erroneous
application of the Guidelines or an otherwise illegal sentence.6
This right cannot come into existence until after the judge
pronounces sentence; it is only then that the defendant knows what
5 And the Seventh Circuit habeas corpus case cited by the
majority -- Johnson v. United States, 838 F.2d 201 (7th Cir. 1988)
-- is no different. The issue in that case was whether the
defendant-appellant could satisfy the applicable habeas corpus
standard of "cause and prejudice" for waiving, post-conviction and
after imposition of sentence -- his known grounds for appealing the
same. Defendant-Appellant Johnson knew what grounds he had for
appealing his conviction and sentence, and he simply acted
according to these known quantities to strategically waive his
right to appeal:
his lawyer told him that an appeal would be expensive,
that he would be out of prison by the time the court got
"round" to deciding the appeal, and that after dropping
his appeal he could file a motion for a reduction of
sentence under Fed.R.Crim.P. 35 with a greater prospect
of success. The defendant cannot press his claims in two
courts at once but must choose.[ ]
Johnson, id. at 204 (citations omitted) (emphasis added).
6 See 18 U.S.C. § 3742(a)(1)&(2); 18 U.S.C. § 3742(e).
12

errors the district court has made -- i.e., what errors exist to be
appealed, or waived. See Fed.R.Crim.P. 11, 1989 Amendment advisory
committee's note (respecting the amendment's mandate that the
district court inform the defendant that the court is required to
consider any applicable guidelines but may depart from them under
some circumstances, so as to assure that the existence of the
Guidelines will be known to the defendant before a plea of guilty
or nolo contendere is accepted: "Since it will be impracticable,
if not impossible, to know which guidelines will be relevant prior
to the formulation of a presentence report and resolution of
disputed facts, the amendment does not require the court to specify
which guidelines will be important or which grounds for departure
might prove to be significant.").
In categorically citing cases concerning the waiver of the
right to appeal known quantities, to support the proposition that
the waiver of the right to appeal unknown errors may be likewise
"informed," today's opinion simply perpetuates a fallacy embraced
in Sierra -- a strain of the fallacy of Accident.7 It is, then, a
shaky foundation indeed that props up Sierra, and one unworthy of
providing the underpinning for such a significant rule of this
7 See generally Irving M. Copi & Carl Cohen, Introduction to
Logic 100-101 (8th ed. 1990) ("when we apply a generalization to
individual cases that it does not properly govern, we commit the
fallacy of Accident.").
13

Circuit.8 Yet even if I were convinced that the sort of futuristic
waiver at issue in this case could be knowing and intelligent, I
could not support it. Any systemic benefits that might inhere in
this type waiver cannot overcome its extremely deleterious effects
upon judicial and congressional integrity, and individual
constitutional rights.

II. The Sierra Rule Moves Sentencing Out of (Over)Sight
The "Sierra rule" reiterated today has roots in still another
fallacy of Accident -- one embraced without question by a majority
of the Fourth Circuit in United States v. Clark, 865 F.2d 1433,
1437 (4th Cir. 1989) (en banc), and readopted without hesitation in
the Fourth Circuit case underlying Sierra: Wiggins. In Clark, a
majority of the en banc Fourth Circuit made the following mistake:
"[i]f defendants can waive fundamental constitutional rights such
as the right to counsel, or the right to a jury trial, surely they
are not precluded from waiving procedural rights granted by
statute." Clark, 865 F.2d at 1437 (emphasis added), quoted in
United States v. Wiggins, 905 F.2d 51, 53 (4th Cir. 1990). See
also e.g., United States v. Rutan, 956 F.2d 827, 829 (8th Cir.
1992) ("If defendants can waive fundamental rights, surely they are
not precluded from waiving procedural rights granted by statute.").
8 See id. at 101 (regarding the fallacy of Accident: "there
is no fallacy more insidious than that of treating a statement
which in many connections is not misleading as if it were true
always and without qualification.") (quoting H. W. B. Joseph, An
Introduction to Logic (New York: Oxford University Press, 1906)).
14

However, even assuming arguendo that the right to appeal one's
sentence is not a fundamental, but a "mere" statutory right, it
does not necessarily follow that the statutory right to appeal is
waivable because "lesser" than waivable constitutional rights.
Individual rights are not all that are at issue here.
28 U.S.C. § 1291 and the provisions of 18 U.S.C. § 3742 cannot
be understood as mere conferrals of individual rights to appeal a
sentence under the Sentencing Guidelines. Rather, these statutory
provisions, along with the Sentencing Guidelines themselves, speak
directly to the power of the federal courts and should be read as
imposing limitations upon individual and judicial authority. Such
limitations cannot be "waived" by parties. Compare United States
v. Willis, 958 F.2d 60, 62-63 (5th Cir. 1992) (reaffirming that the
Speedy Trial Act's "central intent is to protect society's
interests" and thus, that the provisions of the Act are not
waivable by the defendant) (citing United States v. Kington, 875
F.2d 1091, 1107 (5th Cir. 1989)), with Barker v. Wingo, 407 U.S.
514, 92 S.Ct 2182 (1972) (respecting the waivability of the
defendant's Sixth Amendment speedy trial guarantee).
It is a curious rule that says one cannot waive a statutory
right to a speedy trial, on the one hand, and at the same time says
that one can waive a statutory and fundamentally important right to
an appeal, on the other. True, an unconditional guilty plea --
made knowingly, voluntarily, and with the benefit of competent
counsel -- functionally waives all nonjurisdictional defects that
15

have occurred during pre-plea proceedings against the defendant.
United States v. Jackson, 659 F.2d 73 (5th Cir. 1981), cert.
denied, 455 U.S. 1003 (1982). See also United States v. Caperell,
938 F.2d 975, 977 (9th Cir. 1991) (guilty plea generally waives all
claims of a constitutional nature occurring before the plea). And
it is true that among the nonjurisdictional defects so waived are
Speedy Trial Act violations. United States v. Broussard, 645 F.2d
504, 505 (5th Cir. 1981) ("The entry of a knowing and voluntary
guilty plea waives all nonjurisdictional defects in the
proceeding.[ ] This disposes of the speedy trial claim.[ ]")
(citations omitted); accord United States v. Bohn, 956 F.2d 208,
209 (9th Cir. 1992) ("A defendant's guilty plea waives all
nonjurisdictional defect claims.[ ] The right to a speedy trial
under the Speedy Trial Act is nonjurisdictional.") (citation
omitted). But the plea agreement waiver of the right to appeal a
forthcoming Guidelines sentence is different in kind from a plea
agreement-triggered waiver of nonjurisdictional defects occurring
pre-plea. See Blackledge v. Perry, 417 U.S. 21, 37, 94 S.Ct. 2098,
2107 (1974) (Rehnquist, J., dissenting) ("Imposition of sentence in
violation of [due process] is not an 'antecedent constitutional
violation' since sentence is customarily imposed after a plea of
guilty, and is a separate legal event from the determination by the
[c]ourt that the defendant is in fact guilty of the offense with
which he is charged.") (emphasis added).
16

It is especially important to realize that the systemic value
protected by the nonwaivability of Speedy Trial Act provisions
(absent a guilty plea) is identical to that secured by plea
bargains -- i.e., "speedy justice." Compare United States v.
Willis, 958 F.2d 60, 63 (5th Cir. 1992) ("Allowing the defendant to
waive the Act's provisions would compromise the public interest in
speedy justice."), with Blackledge v. Allison, 431 U.S. 63, 71, 97
S.Ct. 1621, 1627-1628 (1977) (noting the importance of plea
bargaining in this country's criminal justice system; plea
bargaining's chief virtues being "speed, economy and finality").
In contrast, the public interest in proper applications of the
Guidelines cannot be protected through a defendant's plea bargained
"waiver" of review of the district court's Guidelines sentencing;
the defendant's "waiver" of review of district court sentencing
under the Guidelines offends the systemic goals reflected in the
Sentencing Guidelines. Indeed, the majority's assertion that "the
[district] court had exclusive authority to set the sentence"
notwithstanding, the Sierra rule is mutinous -- in terms of the
fundamental constitutional doctrines of separation of powers and
checks and balances; the rule sanctions district court usurpation
of the discretionary sentencing authority Congress expressly took
away from the federal trial courts in 1984. See generally
Mistretta v. United States, 488 U.S. 361, 109 S.Ct. 647 (1989); cf.
id. at 382, 109 S.Ct. at 659 ("the greatest security against
tyranny -- the accumulation of excessive authority in a single
branch -- lies . . . in a carefully crafted system of checked and
17

balanced power within each Branch.").9
Despite the majority's assertion that "[Appellant Melancon]
knew that the court would [set his sentence] in accordance with the
sentencing guidelines . . . .", Appellant Melancon had no such
assurance -- as the large and expanding universe of law concerning
district court applications of the Sentencing Guidelines and
appellate court review of the same makes clear.10 In fact, 18
U.S.C. § 3742 plays an essential part in accomplishing the intent
of Congress to limit federal court sentencing power; and the Sierra
rule thwarts § 3742. Following are reflections of the judicial
encroachment sponsored by Sierra.
A sentencing court may depart upward or downward from the
applicable guidelines, to impose a sentence outside the "guideline
range," if the court finds that an aggravating or mitigating
circumstance exists that was not adequately taken into
consideration by the Sentencing Commission in formulating the
Guidelines. 18 U.S.C. § 3553(b). But this Circuit has been quite
9 I note also that the majority's cited case, Johnson v.
United States, 838 F.2d 201 (7th Cir. 1988), is not a Guidelines
case. Defendant-Appellant Johnson was sentenced in March 1983
while the Guidelines emerged as part of the Sentencing Reform Act
of 1984.
10 Legal principles relative to district court application of
the Guidelines and appellate court review of the same are in fact
so unsettled (yet important) that a special reporter has been
created to track and explain developments in this area. See
generally Federal Sentencing Reporter (published for the Vera
Institute of Justice by the University of California Press) (edited
by Emory and Yale Law School Professors Marc Miller and Daniel J.
Freed).
18

inflexible in its demands: (1) that the sentencing court state its
reasons for any such departure, and (2) that the sentence imposed
pursuant to such a departure be reasonable in light of the
sentencing court's articulated reasons. See generally United
States v. Mourning, 914 F.2d 699, 707-708 (5th Cir. 1990). The
Sierra rule obstructs this Circuit's orders respecting Sentencing
Guidelines departures, by insulating violations of these orders
from review. Also insulated from appellate review under the Sierra
rule is the district court judge's adoption of the "guideline
range" calculated under the Sentencing Guidelines by nonjudicial
probation officers. Moreover, waivers of the sort at issue in this
case insulate from review factual inadequacies in the presentence
reports generated by nonjudicial probation officers in Sentencing
Guidelines cases. Appellate review ensures that the record
adequately support whatever factual findings the district court
judge makes or adopts. See United States v. Melton, 930 F.2d 1096
(5th Cir. 1991) (vacating sentencing determination because district
court did not articulate basis for factual findings); United States
v. Graves, 720 F.2d 821, 824 (5th Cir. 1983) ("when a presentence
report is relied upon as a source of the factual basis to establish
the crime, this circumstance must appear on the record, and where
necessary to establish the factual basis, the presentence report
must be part of the record on appeal."). The Sierra rule cancels
this insurance.
19

In brief: every erroneous application of the Guidelines
frustrates the complex policy goals that Congress and the United
States Sentencing Commission intended for the Guidelines to
further.11 The Sierra rule works a breach of the Judiciary's duty
to ensure that the goals of Congress and the Sentencing Commission
are met. Cf. Mistretta v. United States, 488 U.S. 361, 390, 109
S.Ct. 647, 664 (1989) ("the sentencing function long has been a
peculiarly shared responsibility among the Branches of government
and has never been thought of as the exclusive constitutional
province of any one Branch.") (citing United States v. Addonizio,
442 U.S. 178, 188-189, 99 S.Ct. 2235, 2242 (1979)). And the fact
11 While the United States Sentencing Commission is "housed"
in the Judicial Branch, it is a body independent of that Branch.
See generally Mistretta v. United States, 488 U.S. 361, 368-369,
109 S.Ct. 647, 652-653 (1989) (citing 28 U.S.C. §§ 991-995); id. at
384-385, 109 S.Ct. at 661 ("The Sentencing Commission
unquestionably is a peculiar institution within the framework of
our Government. Although placed by the [the Sentencing Reform Act
of 1984] in the Judicial Branch, it is not a court and does not
exercise judicial power.").
20

that -- as my colleagues emphasize -- "the district court
ultimately imposed a sentence within the [applicable guideline]
range" affords no systemic shelter from Sierra's certain storm of
judicial encroachment.12

III. The Sierra Rule Neuters
Federal Rule of Criminal Procedure 11
While today's majority opinion addresses to some extent the
district court's performance pursuant to Federal Rule of Criminal
Procedure 11 (Rule 11), such an analysis is not commanded by the
majority opinion. And the Sierra rule actually appears to sanction
district court disavowal of Rule 11.
District court satisfaction of the "core concerns" of Rule 11
is supposed to help guarantee that "[a] plea of guilty and the
ensuing conviction comprehend all of the factual and legal elements
necessary to sustain a binding, final judgment of guilt and a
lawful sentence." United States v. Broce, 488 U.S. 563, 569, 109
S.Ct 757, 762 (1989). Cf. United States v. Dayton, 604 F.2d 931
(5th Cir. 1979) (Fifth Circuit, en banc, holding that a failure of
a district court to address Rule 11's core concerns requires
12 Moreover, the majority's failure to address the precise
contours of acceptability relative to a "Sierra Waiver" (i.e., "We
do not address . . . the question whether Appellant knowingly
waived the right to appeal a sentence contrary to the district
court's assurances") is inconsistent with principles of judicial
economy -- in light of the fact that Appellant Melancon's plea
agreement says unequivocally that he waived his "right to appeal
the sentence imposed in [ ]his case on any ground, including any
appeal right conferred by Title 18, United States Code, Section
3742." Plea Agreement of March 13, 1991 in United States v. Brian
Melancon, E.D. Tex. No. 1:90-CR-65 (4), at paragraph 6 (emphasis
added).
21

automatic reversal. Rule 11's core concerns are: whether the plea
was coerced; whether the accused understands the nature of the
charges against him or her; and whether the accused understands the
consequences of his or her plea), cert. denied, 445 U.S. 904, 100
S.Ct. 1080 (1980).13 Adherence to Rule 11's core concerns is
crucial, given the final consequences of pleading guilty. In
pleading guilty the defendant may be foregoing a number of
procedural and substantive rights, which rights might lead to
acquittal or dismissal if the defendant's case proceeded toward
trial.14
13 Non-compliance with the non-core requirements of Rule 11,
or merely inadequate or "less than letter perfect" treatment of a
core concern, may be excused under a harmless error analysis.
United States v. Bachynsky, 934 F.2d 1349, 1358 (5th Cir.) (en
banc) (following in this respect United States v. Corbett -- 742
F.2d 173, 178 n.14 (5th Cir. 1984) -- but hastening to add that a
determination by the Circuit that a failure to address an element
or component of Rule 11 is "partial" does nothing more than leave
open the door to test that error for harmlessness; "[a]
determination that such a failure is partial does not automatically
make it harmless."), cert. denied, -- U.S. --, 112 S.Ct. 402
(1991). Accord United States v. Adams, 961 F.2d 505, 510-511 (5th
Cir. 1992); United States v. Martirosian, 967 F.2d 1036, 1038-1039
(5th Cir. 1992).
14 See generally McCarthy v. United States, 394 U.S. 459, 466,
89 S.Ct. 1166, 1170 (1969); Boykin v. Alabama, 395 U.S. 238, 242-
244, 89 S.Ct. 1709, 1711-1713 (1969). See also Barrientos v.
United States, 668 F.2d 838, 842-843 (5th Cir. 1982); United States
v. Caperell, 938 F.2d 975, 977 (9th Cir. 1991).
22

Appellant Melancon's plea agreement says that he waived his
"right to appeal the sentence imposed in [ ]his case on any ground,
including any appeal right conferred by Title 18, United States
Code, Section 3742."15 And the circuit opinions upon which Sierra
relies address only the plea agreement waiver of the right to
appeal a forthcoming sentence. But Sierra itself states that a
defendant may waive the right to appeal his or her conviction and
sentence, as long as the waiver was "informed." See United States
v. Sierra, No. 91-4342, at p. 3 (5th Cir. Dec. 6, 1991) ("[T]he
government argues that Sierra's appeal should be dismissed because
she waived the right to appeal her conviction and sentence as part
of her plea agreement." "Sierra's waiver of her right to appeal
her conviction and sentence was informed.") (emphasis added).
Thus, Sierra appears to go so far as to insulate from direct review
the district court judge's performance relative to Federal Rule of
Criminal Procedure 11 -- i.e., by crushing the tripartite "core
concern" scrutiny called for by Rule 11 and its interpretive
caselaw into a quick colloquy about one concern: Is the
defendant's waiver of his or her right to appeal a sentence
"knowing, intelligent and voluntary?" See United States v. Rutan,
956 F.2d 827, 828-829 (8th Cir. 1992) ("The district court accepted
the plea after an extensive colloquy regarding the implications of
the waiver.") (emphasis added). See also United States v.
15 Plea Agreement of March 13, 1991 in United States v. Brian
Melancon, E.D. Tex. Crim. No. 1:90-CR-65 (4), at paragraph 6
(emphasis added).
23

Wessells, 936 F.2d 165 (4th Cir. 1991); United States v. Bolinger,
940 F.2d 478 (9th Cir. 1991) (i.e., neither of these later opinions
from the Fourth and Ninth Circuits on the subject of plea agreement
waivers of the right to appeal one's yet-to-be-announced sentence
address the district court's satisfaction of Rule 11's core
concerns). Cf. United States v. Dayton, 604 F.2d 931 (5th Cir.
1979) (Fifth Circuit, en banc, holding that a failure of a district
court to address Rule 11's core concerns requires automatic
reversal), cert. denied, 445 U.S. 904, 100 S.Ct. 1080 (1980).
Compare also Barrientos v. United States, 668 F.2d 838, 842-843
(5th Cir. 1982) ("We note that following a plea of guilty, a
defendant may in some circumstances question the propriety of a
Rule 11 proceeding. Other complaints, however, not based on a
jurisdictional or Rule 11 ground should be considered in a motion
to vacate under Section 2255.") (emphasis added).
IV. The Waiver of the Right to Appeal
Anything About One's Sentence Places an
Unconstitutional Condition Upon Pleading
Aside from the facts that the Sierra rule (1) misapprehends
the present-time nature of a knowing and intelligent waiver, (2)
offends judicial integrity by foreclosing from this Court the
ability to directly review errors surrounding a defendant's
"conviction and sentence," and (3) contravenes the congressional
intent underlying the Sentencing Guidelines (i.e., to limit the
power of the federal district courts with respect to sentencing),
this rule reflects the imposition of an unconstitutional condition
upon a defendant's decision to plead guilty. Unconstitutional
24

conditions occur
when the government offers a benefit on condition that
the recipient perform or forego an activity that a
preferred constitutional right normally protects from
governmental interference. The "exchange" thus has two
components: the conditioned government benefit on the
one hand and the affected constitutional right on the
other.16
It is true that in pleading guilty to a charge knowingly,
voluntarily, and with the benefit of competent counsel, one waives
all but a few grounds on which to appeal. This is because a guilty
plea admits all the elements of a formal criminal charge and works
to waive nonjurisdictional defects occurring prior to the guilty
plea's execution. See Barrientos v. United States, 668 F.2d 838,
842-843 (5th Cir. 1982) (citing United States v. Jackson, 659 F.2d
73 (5th Cir. 1981), cert. denied, 455 U.S. 1003 (1982); and United
States v. Saldana, 505 F.2d 628 (5th Cir. 1974)). Nonetheless, at
bottom, the right to appeal in criminal cases is of fundamental
16 Kathleen M. Sullivan, Unconstitutional Conditions, 102 Harv.
L.R. 1415, 1421-1422 (1989) (emphasis in original). See also id.
at 1419:
[The doctrine of unconstitutional conditions] cannot
define the content of constitutional liberties, rank
their importance, or set the level of state justification
demanded for their infringement. But assuming that some
set of constitutionally preferred liberties has been
agreed upon, and that burdens on those liberties require
especially
strong
justification,
unconstitutional
conditions doctrine performs an important function.
Accordingly, commentators have overwhelmingly supported the
doctrine's basic premises. Id. at 1415 (citing the works of
several imminent scholars for this proposition).
25

importance.17 Even if the Due Process and Equal Protection Clauses
of the Constitution do not require the government to create a
statutory system of appellate rights, these constitutional clauses
do require the government, once it has decided voluntarily to
create such a system (as it has), to allow unfettered and equal
access to it.18 Moreover, the mandatory guideline sentencing system
created by the Sentencing Reform Act of 1984 creates such
expectations that a defendant enjoys a constitutionally-protected
liberty interest in being sentenced according to the Guidelines.
See generally Burns v. United States, -- U.S. --, --, 111 S.Ct.
2182, 2186-2188 (1991); id. at --, --, 111 S.Ct. at 2190-2192,
2196-2197 (Souter, J., dissenting) ((1) noting that "the sentencing
process, as well as the trial itself, must satisfy the requirements
of the Due Process Clause" (quoting Gardner v. Florida, 430 U.S.
349, 358, 97 S.Ct. 1197, 1204 (1977)); and (2) concluding that the
Sentencing Reform Act, like the mandatory parole statutes, created
a liberty interest by using mandatory language -- i.e., that a
sentencing judge "shall impose a sentence of the kind, and within
17 See generally Griffin v. Illinois, 351 U.S. 12, 18-19, 76
S.Ct. 585, 590-591 (1956) (recognizing the fundamental fairness
role that the appellate review process plays in the criminal
justice system); Douglas v. California, 372 U.S. 353, 83 S.Ct. 814
(1963). Cf. Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437 (1974).
See also Arrastia v. United States, 455 F.2d 736, 739 (5th Cir.
1972) ("[The right to a direct appeal] is a right which is
fundamental to the concept of due process of law.") (citations
omitted).
18 See generally Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585
(1956) (holding that government has a due process duty not to limit
the opportunity of a statutorily created direct appeal in a
criminal case).
26

the range [set forth in the Guidelines,] unless the court finds
that there exists an aggravating or mitigating circumstance of a
kind, or to a degree, not adequately taken into consideration by
the Sentencing Commission" (quoting 18 U.S.C. § 3553(b); and citing
Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 12, 99 S.Ct.
2100, 2106 (1979), and its progeny, which recognized that mandatory
parole statutes -- by giving convicts an "expectation of release"
-- create a liberty interest subject to "some measure of
constitutional protection.")). See also United States v. Restrepo,
946 F.2d 654 (9th Cir. 1991) (en banc), cert. denied, -- U.S. --,
112 S.Ct. 1564 (1992).
With a "Sierra Waiver," the government grants to the criminal
defendant the benefit of a plea agreement only on the condition
that the defendant accept the boot-strapped abdication of his or
her right to appeal. This is at least unacceptable, even if the
government may withhold the benefit (i.e., the plea agreement)
altogether. See United States v. Rodriguez, 959 F.2d 193, 197-198
(11th Cir. 1992) (district court improperly conditioned sentence
under the Guidelines when it weighed defendants' exercise of their
Fifth Amendment rights and their intention to exercise their right
to appeal against them in denying their request for two-level
reduction in offense level for acceptance of responsibility). See
also Blackledge v. Perry, 417 U.S. 21, 25-28, 94 S.Ct. 2098, 2101-
27

2102 (1974) (condemning, as violative of due process, vindictive
prosecutorial (recharging) mechanisms discouraging appeals: "by
'upping the ante' through a felony indictment whenever [one]
pursues his statutory appellate remedy -- the [government] can
insure that only the most hardy defendants will brave the hazards
of a de novo trial.") (quoting North Carolina v. Pearce, 395 U.S.
711, 724-725, 89 S.Ct. 2072, 2080 (1969): "imposition of a penalty
upon the defendant for having successfully pursued a statutory
right of appeal or collateral remedy would be . . . a violation of
due process of law.").
As this Circuit recognized recently:
Prosecutorial vindictiveness exists "if the prosecution
acts arguably to punish the exercise of [the right to
appeal], by increasing the measure of jeopardy by
bringing additional or more severe charges, or where the
judge assesses a larger penalty upon subsequent
conviction for the same offense following an earlier
reversal."19
Given that waivers of the Sierra sort are systemically flawed (not
to mention that they are inherently uninformed and unintelligent),
they do indeed "pose a realistic likelihood of 'vindictiveness.'"20
In light of the "Sierra Waiver's" systemic disutility, it is quite
arguable that in conditioning a plea bargain upon the defendant
making this type waiver, the prosecution acts only to punish the
defendant's exercise of his or her right to appeal -- i.e., by
19 United States v. Chagra, 957 F.2d 192, 195 (5th Cir. 1992)
(quoting United States v. Ward, 757 F.2d 616, 619-620 (5th Cir.
1985)).
20 Blackledge v. Perry, 417 U.S. 21, 27, 94 S.Ct. 2098, 2102
(1974), quoted in Chagra, id. at 195.
28

threatening to increase the measure of jeopardy faced by a
defendant who refuses to execute a Sierra Waiver. Such
prosecutorial overreaching impedes the defendant's due process
rights and impinges the voluntariness of the defendant's guilty
plea.21
Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663 (1978), is
not contra. The purposefully narrow holding in Bordenkircher was
this: the course of conduct engaged in by the prosecutor in that
case -- which no more than openly presented the defendant with the
unpleasant alternatives of foregoing trial or facing charges on
which he was plainly subject to prosecution -- did not violate the
Due Process Clause of the Fourteenth Amendment. The Bordenkircher
Court emphasized that, by tolerating and encouraging the
negotiation of pleas, the Court had accepted as constitutionally
legitimate the simple reality that the prosecutor's interest at the
bargaining table is to persuade the defendant to forego his
constitutional right to stand trial. 434 U.S. at 365, 98 S.Ct. at
669. Had the Bordenkircher Court rejected the prosecutor's ability
during plea negotiations to threaten enlargement of the defendant's
jeopardy, "the institution of plea negotiation could not survive."
United States v. Goodwin, 457 U.S. 368, 378 n.10, 102 S.Ct. 2485,
2491, n.10 (1982) (explaining Bordenkircher). In stark contrast to
the situation presented in Bordenkircher, waivers of the Sierra
21 See e.g., Miller v. Fenton, 474 U.S. 104, 106 S.Ct. 445
(1985) (the inquiry into voluntariness calls for an appreciation of
the character of the government's conduct, not simply an
examination of the suspect's state of mind), cited in Johnson v.
United States, 838 F.2d 201, 204 (7th Cir. 1988).
29

sort appear devoid of systemic or societal value. Certainly, the
(due process violation) risks run by the Sierra Waiver are not
necessary to the survival of the generally beneficial institution
of plea negotiation.
In short: the Supreme Court has found certain actions to be
so likely to result from prosecutorial misconduct that the Court
has "presume[d]" them to be motivated by improper vindictive
impulses. United States v. Goodwin, 457 U.S. 368, 373, 102 S.Ct.
2485, 2488 (1982). See also Blackledge v. Perry, 417 U.S. 21, 94
S.Ct. 2098 (1974). In light of the Sierra Waiver's systemic
demerits, it is presumptively constitutionally improper for a
prosecutor to add to his or her interests at the bargaining table
the conditioning of plea agreements upon the defendant's abdicating
the right to appeal (on any grounds) a forthcoming sentence. See
Bordenkircher v. Hayes, 434 U.S. 357, 363, 98 S.Ct. 663, 668 (1978)
("[F]or an agent of the State to pursue a course of action whose
objective is to penalize a person's reliance on his legal rights is
'patently unconstitutional.'") (quoting Chaffin v. Stynchcombe, 412
U.S. 17, 32-33, n.20, 93 S.Ct. 1977, 1986, n.20 (1973)).

V. What "Good" are These Waivers?
Even if I did not consider the sort of futuristic waiver at
issue in this case to be inherently uninformed, unintelligent and
involuntary, I would think it unacceptable because any benefits it
might confer are too minuscule to overcome its deleterious
consequences.
30

Most fundamentally: there is no reason to believe the waiver
of appellate rights is an indispensable part of plea bargaining.
Plenty of plea agreements were made prior to the reign of these
appellate right waiver clauses.
Second: if the Sierra rule represents the collective opinion
of the members of this Court that these waivers will stem the tide
of appeals in this type case, the Court is engaging in wishful
thinking at best and self-delusion at least. Such appeals will
simply come equipped with additional arguments about whether one's
right to appeal has been waived "intelligently, knowingly and
voluntarily." And because the Sierra rule serves to force Rule 11
complaints into habeas corpus pleadings -- see United States v.
Rutan, 956 F.2d 827, 829 (8th Cir. 1992) -- this Court can surely
expect to see an increase in habeas corpus cases. Thus, far from
decreasing the Court's workload in this area of the criminal law,
the Sierra rule appears certain to increase it.
Yet, assuming that Efficiency can be heard to advocate our
adherence to the Sierra rule, her argument is at best weak. Any
small "gain" in "speed," "economy", or "finality" derived from
Sierra's continued sovereignty is overwhelmed by the rule's
exorbitant, unacceptable cost to judicial and congressional
integrity, and individual constitutional rights. Cf. Newton v.
Rumery, 480 U.S. 386, 394-398, 399-403, 107 S.Ct. 1187, 1193-1195,
31

1195-1197 (1987) (plurality and concurring opinions) (holding that
the waiver of one's § 1983 claims against local governments and
officials (i.e., the execution of a "release-dismissal agreement"),
as part of a plea bargaining agreement, is not per se void as
against public policy -- but rather, that such is enforceable when:
(1) the agreement was voluntarily made, (2) there is no evidence of
prosecutorial misconduct or overreaching, and (3) enforcement of
the agreement will not adversely affect the relevant public
interests); id. at 401, 107 S.Ct. at 1196 (O'Connor, J., concurring
specially with four-justice plurality opinion (four other justices
dissenting) -- in order to accentuate her view that the burden is
upon those seeking to enforce release-dismissal agreements to
prove: (1) that a particular agreement was voluntarily made, (2)
that the agreement was not the product of prosecutorial
overreaching, and (3) that the agreement is in the public
interest).

VI. Conclusion
For the reasons I have addressed, I concur merely in the
panel's judgment, and only because stare decisis says I must. I
strongly urge the Circuit, en banc, to examine the Sierra rule --
and to disclaim it. The Sierra rule is a legal woods colt whose
questionable ancestry will surely result in offspring of which this
Circuit will not be proud.
SO ORDERED.
32