Waiver of Appeal Applies to Supervised Release Terms

By Robyn Hagan Cain on June 13, 2012 | Last updated on March 21, 2019

Can a defendant who signed a waiver of appeal, appeal?

In most cases, the answer is no. The waiver isn't absolute, but the Fifth Circuit Court of Appeals won't allow most appeals once the waiver has been signed.

Harold Earl Scallon pleaded guilty, pursuant to a written agreement, to possession of material involving the sexual exploitation of a minor. In his plea agreement, Scallon waived his right to appeal his conviction and sentence "on all grounds" and to contest his sentence in "any post-conviction proceeding"; he reserved the right to appeal any punishment imposed in excess of the statutory maximum and to make a claim that ineffective assistance of counsel affected the validity of his appeal waiver.

The district court sentenced Scallon to 78 months of imprisonment and to a 5-year term of supervised release that included standard conditions of supervision and additional supervised release terms.

Scallon filed a Verified Motion and Request of Modification of Terms of Supervised Release, asking the court to delete or modify standard conditions of his supervised release, which precluded him from leaving the judicial district without permission and required that third parties, including employers, be notified of risks associated with his criminal history. He also asked the court to delete or modify the additional supervised release conditions, which prohibited unsupervised contact with children, possessing electronic devices, viewing any images depicting sexually-explicit conduct, and required him to submit to warrantless searches.

Scallon argued that his sentence varied significantly from sentences imposed for similar conduct in the federal district in which he was convicted, and that the additional terms of supervised release were greater than necessary under the circumstances, and that recidivism was unlikely in his case.

(Recidivism may not be likely, but asking the court for unsupervised contact with children and the right to view sexually-explicit images -- after child porn possession -- makes him sound creepy.)

Here, the Fifth Circuit Court of Appeals found that Scallon's challenges could have been raised on direct appeal or as part of a collateral attack, and Scallon unequivocally waived both of those options in his written plea agreement.

Unlike Cooley v. United States, in which the Fifth Circuit ruled that a waiver of appeal didn't bar a defendant from appealing if he was "sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission," there were no altered guidelines for supervised release in Scallon's case.

Signing a plea agreement and waiver of appeal may get your client out of jail faster -- or help him avoid jail altogether -- but it also means he waives his right to appeal. Make sure your plea-bargaining clients understand that "waiver of appeal" is more than just terminology; in the Fifth Circuit Court of Appeals, it's binding on both the sentence and the supervised release terms.

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