The sentence given was 16 years for conspiracy to participate in rocketeering activites. The defendant is trying to appeal under ineffective counsel because no quanity drug hearing was given. Is it possible in an appeal to appeal the drugs only? I thought if you take a plea agreement you waive all rights to appeal. Can the judge give you your appeal rights back at sentencing? With the time given can he appeal even though he took a deal? This took place in Baltimore Maryland. ( The PDL GANG FEDERAL INDITMENT)
You can make an application for relief under 28 USC § 2255 if you have grounds for relief from your plea agreement and if you file your request for relief within one year. In this case it doesn't sound to me like you have the grounds but try anyway. You have nothing to lose but the benefits of your plea.
Unfortunately, there is no simple answer. Although he has most likely given up most of his federal appeal rights, there are some that you never give up. You need to look to the plea agreement for guidance. The plea agreement will outline his appellate rights. Further, at sentencing, the Judge will have told him, on the record, what his appellate rights are.
Further, you mentioned that there was no “quantity drug hearing.” If you mean to say that there was never a hearing to determine the quantity of drugs attributable to the defendant, then the answer to your question is most likely in the guilty plea agreement. Most likely, although not every time, the quantity of drugs that one is pleading guilty to is outlined in the guilty plea agreement. If there was no agreement on the weight attributable to the defendant, then the Court would have to make a determination.
You should probably speak directly to the attorney who handled the case to answer these questions for you.
Coley O’Brien Reynolds, Esquire
This response is given for informational purposes only.
I agree with my colleague to an extent.
"Extent" is a pretty important word to your question, in fact. Your specific question seems to be whether or not a defendant may appeal a SENTENCE based on ineffective assistance of counsel. I say "sentence" and not "conviction" because it appears your concern is with a drug quantity which factored into the sentencing, rather than actual guilt or innocence or some evidentiary matter factoring into that calculation. As a member of the 4th Circuit (where appeals from Maryland's Federal Courts go) I feel confident in speculating that this person's plea agreement did, in fact, waive his right to appeal, "to the maximum EXTENT permitted by federal law." So it's not an absolute waiver, but a limited waiver (it may even say that in the plea agreement) and the limitation is what the law allows him to waive. On the one hand, the term "limited" is deceiving because it waives most avenues available on appeal. On the other, it is truly limited b/c there are still avenues left for the defendant to pursue, potentially.
My experience is that most Circuits will entertain a claim of ineffective assistance of trial/plea/sentencing counsel in a 2255 motion (usually not an appeal, for reasons that are somewhat nuanced and can be explained somewhere other than here). So the answer to your question is probably that the defendant can take a shot at alleging ineffective assistance of counsel if you have a legitimate ground for doing so, probably in a 2255, rather than a direct appeal. What is a legitimate ground? I suggest you speak with an attorney about that.
As to other points you made, a judge could reject a plea agreement for any reason, including the inclusion of a limited waiver of appeal, but if he has already accepted the plea agreement, and therefore the plea, I do not believe it is possible for the judge to reinstate a defendant's appeal rights at sentencing. It sounds like the sentencing has already taken place in this case anyway, so anything the judge could or could not do has already been done, it seems.
As for whether or not the defendant can appeal based on the time given, that depends on the terms of the plea agreement. For instance, the defendant's waiver may have included an exception that allows him to appeal if his sentence exceeds the maximum sentence recommended by the guidelines in his case. So if 16 years (192 months) exceeds that time, he may be able to file a direct appeal, at least of his sentence. He better figure that part out fast: a notice of appeal must be filed within 10 days of the sentencing order.
Otherwise, it's like I have already said above, he probably cannot file a direct appeal, but may be able to attack his sentence (and possibly his plea) in a motion to vacate under 2255. Bear in mind there are tight time deadlines associated with actions like this, so it is in this defendant's best interest to consult an attorney about the process as soon as possible.
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