Case o' The Week: Ninth Brooks Bibler Thumper -- US v. Brooke Bibler, and Appellate Jx

The Honorable Judge Sam Haddon (left) clearly got a sentence wrong when he held Booker eliminated the Safety Valve (again). In a very disappointing decision, the Ninth found it had no jurisdiction to correct this error because of an appellate waiver. See United States v. Brooke Bibler, No. 06-30375, __ F.3d. __, Slip. Op. at 4949 (9th Cir. May 4, 2007), decision available here.

Players: Yet another Booker- related appeal of a sentence imposed by the Hon. Sam E. Haddon of Montana. See blog here (discussing Judge Haddon's role in shaping Ninth Circuit Booker jurisprudence).

Facts: Brooke Bibler pleaded guilty to drug charges that carried a ten year mandatory-minimum. Slip. Op. at 4952. She was Safety Valve eligible, and after she cooperated the PSR recommended 41-51 months. Id. Judge Haddon instead gave her eighty months, based on his – novel – (and incorrect) view that Booker eliminated Safety Valve. Id. at 4953. (This is the second Ninth Circuit opinion discussing that novel approach). Although Bibler’s plea agreement contained an appellate waiver, she took Haddon up.

Issue(s): “An appellate waiver will not apply if . . . the sentence violates the law. . . . A sentence is illegal if it exceeds the permissible statutory penalty for the crime or violates the Constitution.” Id. at 4954.

[ed. note: The issue was whether the Ninth could conduct a substantive appellate review. It held it could only do so (despite an appellate waiver) if the sentence was illegal. The issue was thus whether this sentence was, "illegal."]

Held: “Even assuming that the district court erred in failing to apply the safety valve statute, which this court has held to be mandatory post-Booker, see United States v. Cardenas-Juarez, 469 F.3d 1331 (9th Cir. 2006), this error does not render appellant’s sentence illegal because § 3553(f) does not lower the permissible statutory penalty for the crime.” Id. at 4954. “If defendants intend to preserve a larger subset of their appellate rights, this must be bargained for in the plea agreement. For instance, defendants could reserve the right to appeal in case of plain error, or in case the district court issued a sentence that exceeded a particular period of time. But absent such a bargained-for term, or the applicability of an exception, a knowing and voluntary waiver of appellate rights will preclude substantive appellate review in this Court.” Id. at 4955 (emphasis added).

Of Note: This little decision has quickly generated big interest from the Defender community. San Diego appellate gurus Steve Hubachek and Shereen Charlick have noted that this egregious sentencing error doubled Ms. Bibler’s sentence exposure. They note that the Court’s cramped view of its own jurisdiction to correct this error is out of step with other circuits. See United States v. Gwinett, __ F.3d __, 2007 WL 1217733, *2 (3rd Cir. Apr. 26, 2007). Moreover, other circuits have allowed relief in egregious cases despite appellate waivers. See, e.g., United States v. Khattak, 273 F.3d 557, 562-63 (3d Cir. 2001).

In a similar vein, Sacramento appellate expert David Porter has an en banc case pending that challenges the Ninth’s refusal to exert appellate jurisdiction after an unconditional guilty plea. United States v. Castillo, No. 05-30401 (argued Mar. 21, 2007). In recent briefing, David touts four Supreme Court decisions from the last five terms that conclude that a party’s litigation conduct cannot strip a federal court of subject-court jurisdiction.

The Bibler sentence is plainly wrong; the fact that it can't be touched on appellate review is unjust. Some very smart folks are taking a very hard look at this issue of appellate jurisdiction: stay tuned for further en banc action.

How to Use: Judge Betty Fletcher means well by encouraging us to carve out exceptions to negotiated appellate waivers. On a level bargaining playing-field, that would be great advice. Unfortunately, defense “bargaining” is better described as defense “groveling:” we usually don’t have a lot of leverage to demand these exceptions. There’s two solutions to this problem.

First, an enlightened United States Attorney's Office should agree to carve out an exception to appellate waivers for plain error. Given DOJ’s slavish devotion to the guidelines, this is in the government’s interest – after all, it purports to be very concerned that guideline calculations be accurate. (In this case, for example, the government has previously conceded in the Ninth that Judge Haddon simply got his safety valve/Booker analysis wrong. The government should want that sentence corrected).

Another answer is for district courts to insist that plain-error review survive appellate waivers. Judge Charles Breyer in the N.D. Cal. has been very active in this area, and has a standing order about appeal waivers. Academics, the bench, and DOJ should take a closer look at Judge Breyer’s reasoning – his approach would nip this appellate-jurisdiction conundrum in the bud.

For Further Reading: Judge Breyer’s standing order on plea agreements is available here.

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org


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