United States v. Watson

48 F.4th 536

UNITED STATES of America, Plaintiff-Appellee,

v.Dinish L. WATSON, Defendant-Appellant.

No. 22-1779

United States Court of Appeals, Seventh Circuit.

September 7, 2022

Laura Reppert, Attorney, Office of the United States Attorney, Criminal Division, Fairview Heights, IL, for Plaintiff-Appellee.

Peter W. Henderson, Attorney, Office of the Federal Public Defender, Urbana, IL, Thomas W. Patton, Attorney, Office of the Federal Public Defender, Peoria, IL, for Defendant-Appellant.

Before Easterbrook, Scudder, and Jackson-Akiwumi, Circuit Judges.

Scudder, Circuit Judge.

Plea agreements are common in federal criminal practice, and many contain a provision in which the defendant, often in exchange for a concession from the government, agrees to waive his right to appeal. Some defendants nonetheless then appeal, with the government understandably often reacting by saying it wants the court to enforce the waiver. Before us is a motion from the government asking us to hold Dinish Watson to the waiver of appeal in his plea agreement and, more generally, inviting us to revisit the way we resolve appeals like this.

In denying the government's motion, we largely adhere to our current practice for addressing these circumstances. That approach best balances the competing interests at stake while also affording the government a fair opportunity to avoid investing unnecessary resources in appeals that should be dismissed on the basis of a plea agreement waiver.

I

Watson pled guilty to federal charges pursuant to the terms of an agreement that waived his right to appeal any aspect of his conviction or sentence, subject to exceptions not immediately relevant. Following sentencing Watson instructed his appointed counsel to file a notice of appeal. Counsel did so but then moved to withdraw because he did not practice in appellate courts. We then appointed another lawyer and set a briefing schedule allowing 90 days for the opening brief. The government reacted by pointing to the waiver in the plea agreement and moving to dismiss the appeal.

In charting this course, the government noted our practice of treating motions like this as a notice of its intent to seek dismissal, as outlined in United States v. Manning , 755 F.3d 455, 456 (7th Cir. 2014) (Posner, J., in chambers), but asked us to abandon that procedure. Within the ten days normally available to oppose a motion, see Fed. R. App. P. 27(a)(3)(A), Watson's counsel responded and urged us to follow Manning , and explained that he otherwise needed more time to confer with his new client and to respond adequately to the government's request to dismiss the appeal.

We then invited the parties to expand on their positions about the appropriate procedures for resolving appeals involving waivers like this one.

II

A

We start by sketching the basic principles at play here. Though we, like many courts, refer to agreements like Watson's as "appeal waivers," that terminology is a touch too loose and imprecise. See Garza v. Idaho , ––– U.S. ––––, 139 S. Ct. 738, 744–45, 203 L.Ed.2d 77 (2019). A defendant does not, by entering one of these agreements, waive his right to file a notice of appeal. Rather, he forfeits only his ability to raise certain claims on appeal. Some claims always 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, 192–93 (7th Cir. 2014). In short, even a broad waiver differs only in degree, not in kind, from a normal guilty plea that bars many claims. See Garza , 139 S. Ct. at 747.

Remember, too, that criminal defendants are entitled to the effective assistance of counsel on direct appeal. See Evitts v. Lucey , 469 U.S. 387, 396, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985). And 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 ground for appeal. Part of that consideration, of course, will include discussions with the defendant whether to dismiss the appeal voluntarily, if the waiver applies. See Fed. R. App. P. 42(b) ; 7th Cir. R. 51(f).

We know from experience that often defense counsel's assessment of a case and discussions with the defendant will lead to a voluntary dismissal of a previously filed notice of appeal. That is what has happened here. While the government's motion to dismiss was under advisement, Watson filed his own motion to dismiss voluntarily. But in other instances the defendant may want to press ahead with an appeal. In that situation, defense counsel is not then obligated to raise whatever waived or otherwise foreclosed arguments the defendant may demand. Rather, counsel owes a professional duty to the court to refrain from frivolous litigation—risking discipline if they press on with utterly meritless claims. See, e.g., United States v. Patridge , 507 F.3d 1092, 1096–97 (7th Cir. 2007).

The Supreme Court struck a balance between these two duties—one to the client and the other to the court—in Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). As Anders is applied in this Circuit, appointed counsel who deem an appeal frivolous must 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, 366 (7th Cir. 1985). The defendant then has 30 days to file a response contesting counsel's conclusion. See 7th Cir. R. 51(b). Once that deadline has passed, and without a government submission, the Anders brief and any response are submitted to a panel and we issue a decision either accepting counsel's conclusions and dismissing the appeal or rejecting them and directing further briefing. The Supreme Court has suggested the Anders process is one good way to determine whether a waiver forecloses an appeal. Garza , 139 S. Ct. at 746 n.8, 749 n.14. And cases involving waivers are a mainstay of our Anders docket.

Our first foray into the procedures surrounding enforcement of appeal waivers emphasized the need to comply with our prescribed Anders process, even when a waiver is involved. In United States v. Mason , 343 F.3d 893 (7th Cir. 2003), the government pointed to the waiver of appeal in a plea agreement and moved to dismiss an appeal long before the opening brief was due. We recognized the motion put "pressure" on defense counsel and "effectively shortened by several months ... the time that counsel had in which to assess Mason's case and file a brief that ... would comply with Anders. " Id. at 894. Counsel did so promptly and conceded the waiver foreclosed all possible arguments on appeal. See id. We nonetheless declined to rule on the motion and instead followed our standard practice under Circuit Rule 51(b) of giving the defendant time to respond. It was only when that deadline passed that we resolved the appeal as we would any other Anders case. See United States v. Mason , 86 F. App'x 194, 195 (7th Cir. 2004).

Everything in Mason happened faster than usual: defense counsel acted immediately in responding to the government's motion to dismiss and filing a thorough Anders submission. Knowing that all of this takes more time across the mine run of appeals, we suggested that extensions would be freely granted in future cases. See 343 F.3d at 895.

One such request for an extension of time came in Manning , and it was that motion that prompted Judge Posner to write an in-chambers opinion providing guidance for the handling of these situations. With or without a motion to dismiss an appeal from the government, he observed, defense counsel would have to either file an Anders brief conceding the waiver foreclosed any appellate arguments or submit a nonfrivolous contention that escapes the waiver: the only difference was the shorter time to do so. See 755 F.3d at 455. But that difference all but disappears once necessary extensions become involved. Judge Posner therefore construed an early motion to dismiss as a "notice of intent to enforce the appeal waiver," which he thought would "have the same accelerating effect as a motion to dismiss, while requiring less work for both sides and preserving the briefing schedule." Id. at 456.

By and large our court has followed the Manning procedure for nearly the last decade.

B

The government now asks us to chart a different path forward. It suggests that it should be allowed to file a motion to dismiss early in the appeal asserting that all potential arguments are foreclosed because of the waiver. It then proposes we suspend briefing and give defense counsel 30 days (with liberal extensions) to file either a response identifying the arguments she intends to make that escape the waiver or instead a formal Anders brief agreeing with the motion, at which point the standard Anders process would kick in. This system, the government insists, will more swiftly resolve cases with appeal waivers—benefitting both itself and, indirectly defendants by making plea waivers more valuable bargaining chips. See United States v. Worthen , 842 F.3d 552, 555–56 (7th Cir. 2016). Otherwise, the government posits, it will find itself having to file briefs arguing for both the enforcement of the waiver and, in the alternate, affirmance on the merits even in cases where it is obviously entitled to dismissal.

No doubt the government should not as a matter of course have to submit full merits briefs in every case where the defendant agreed to an appeal waiver. The whole point of the waiver, after all, is to realize a savings of resources. Proper application of the Manning procedure allows for just that. What we often see is what we would expect from defense counsel complying with their professional obligations: they either convince their clients to dismiss an appeal or file an Anders brief. Neither resolution requires any input from the government—and...