By Paul Berks
Massey & Gail LLP

In United States v. Worthen, No. 15-3521, the Seventh Circuit dismissed an appeal of a criminal conviction on the grounds that the defendant waived his right to appeal as a condition of entering a plea agreement.

A grand jury indicted defendant Worthen on four counts, including “causing death while using or carrying a firearm during a crime of violence,” under 18 U.S.C. § 924(j), which carried a potential sentence of death or life in prison. Worthen pled guilty to the section 924(j) charge, as well as a robbery charge, and agreed to waive his appeal rights. In exchange, the government dismissed the other counts and promised not to seek the death penalty.

The district court subsequently sentenced Worthen to 60 years in prison – 10 years for robbery and 50 years for the section 924(j) charge. Worthen appealed, arguing that robbery was not a “crime of violence” within the meaning of the statute, and therefore was not a predicate offense necessary to support his conviction. Absent a conviction on a valid predicate offense, Worthen argued his section 924(j) conviction was invalid.

The government moved to dismiss the appeal because Worthen had waived his right to appeal as part of his plea deal. The Seventh Circuit noted that it had long enforced the general rule that “appeal waivers are enforceable and preclude appellate review.” The court also recognized that it had previously carved out a “narrow exception[ ] to this rule” when “a sentence *** exceeds the statutory maximum for the crime committed.” Worthen argued he fell within this exception because, if his conviction under section 924(j) was invalid, the maximum sentence on the remaining robbery charge was 20 years, and his 60-year sentence would therefore exceed the statutory maximum for the crime for which he was convicted.

The Seventh Circuit rejected this reasoning as “entirely circular” because it would require the court to determine the merits of his appeal in order to assess the validity of his appellate waiver. The court explained that, under Worthen’s approach, “the rule would be that an appeal wavier is enforceable unless the appellant would succeed on the merits of his appeal.” It explained that this approach would effectively “eviscerate the right to waive an appeal” by merging the merits of the appeal with the validity of the waiver.

The court further recognized that the effective reversal of its “longstanding precedent that appeal waivers are generally enforceable” would reduce the willingness of the government to offer appeal waivers as part of plea deals. This, in turn, would lead the government to offer less generous plea bargain terms, harming defendants, like Worthen, who secured a promise from the government not to seek the death penalty, in part, in exchange for his waiver of the right to appeal. Accordingly, the court dismissed Worthen’s appeal without considering its merits.