Academic journal article Washington and Lee Law Review

Examining Rule 11(b)(1)(n) Error: Guilty Pleas, Appellate Waiver, and Dominguez Benitez [Dagger]

Academic journal article Washington and Lee Law Review

Examining Rule 11(b)(1)(n) Error: Guilty Pleas, Appellate Waiver, and Dominguez Benitez [Dagger]

Article excerpt

I. Introduction..........552

II. Receiving the Guilty Plea...........

A. Voluntary and Intelligent Requirement...........555

B. Procedural Requirement: Federal Rule of Criminal Procedure ..........560

III.Appealing the Guilty Plea...........562

A. Appellate Rights...........562

B. Appellate Waivers...........566

C. Plain Error Review: Affecting Substantial Rights...........569

D. United States v. Dominguez Benitez: Rule 11 and the Objective Test..........572

IV.Federal Courts of Appeals' Application of Dominguez Benitez to Rule 11(b)(1)(N) Errors: Where the Confusion Arises.........575

A.Circuits that Apply Only the Objective Test.........578

B. Circuits that Claim to Apply Only the Objective Test..........579

C. Circuits that Apply a Voluntariness and Intelligence Inquiry..........586

V. Argument for Adopting the Two-Part Inquiry: The Purpose of Rule 11(b)(1)(N) and the Effects of Adding the Voluntariness and Intelligence Inquiry..........596

VI. Conclusion.........605

I. Introduction

In our modern justice system, over ninety-five percent of federal criminal cases result in guilty pleas.1 Guilty pleas are often the product of direct bargaining between the prosecutor and defense counsel about the charges against the defendant and the punishment the prosecution seeks, although a defendant may choose to plead guilty without any commitment from the prosecution.2 The widespread and commonplace role of guilty pleas3 in the criminal justice system has far-reaching effects on the rights of defendants, including the constitutional right to a jury trial, the right to counsel, and the privilege against selfincrimination.4 In particular, appeal waivers prevent a defendant from appealing parts of his conviction, often including his sentence.5 Because the right to appeal exists in a legal purgatory, lingering somewhere above a purely statutory right but not rising to the level of a constitutionally guaranteed right,6 appeal waivers draw concerns about lack of procedural fairness and abuse by prosecutors and defense counsel alike.7

Federal Rule of Criminal Procedure 118 provides the advisements and questions that a judge must include in his determination that the defendant is entering a valid guilty plea.9 Rule 11(b)(1)(N)10 requires that the judge determine on the record that the defendant understands he waives his right to future appeals.11 This Note advocates that Rule 11(b)(1)(N) is unique because it concerns appellate waiver.12 As such, when a judge deviates from the rule, the standard of review should not be only the objective standard articulated in United States v. Dominguez Benitez,13 which concerned a different Rule 11 violation.14 Instead, appellate courts should add a voluntariness and intelligence inquiry for review of Rule 11(b)(1)(N) errors.15

Many federal circuit courts already conduct the additional voluntary and intelligent inquiry when examining Rule 11(b)(1)(N) errors.16 However, the circuits lack uniformity in articulation and application, such that a split of authority arises between the courts over the method of analysis and standard of review.17 Without consistency among the circuits, defendants fare differently in challenging the enforceability of their appellate waivers, which are meant to prevent an appellate court from hearing appeals on the merits.18 Expressly adopting the voluntariness and intelligence inquiry alongside the objective standard from Dominguez Benitez ensures that the circuits reviewing plea hearing colloquies for Rule 11(b)(1)(N) errors find the same showing of prejudice.19

Part II of this Note develops the landscape of the constitutional and procedural requirements for ensuring a defendant's guilty plea is valid.20 Part III examines appellate waiver and federal case law on appealing guilty pleas and establishes the standards for plain error review of Rule 11 violations in general.21 Part IV details the various approaches of the federal circuit courts regarding review of Rule 11(b)(1)(N) errors, with a focus on the circuits that add a voluntary and intelligent inquiry to the objective standard of review. …

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