As a result, jury selection commenced and concluded and the prosecutor was no longer willing to offer anything less than 135 months. His lawyer was allegedly offered a ninety-five month deal but took too long in drafting the deal and accepting the plea. The defendant also raised an interesting ineffective assistance of counsel issue. However, he stipulated to the enhancement in the plea and in court.Ĭonceding a point and later claiming that the court erred does not suffice for a miscarriage of justice. He claims that the leadership sentencing enhancement was unfounded. However, the language of the plea deal and the judge's discussion of the terms (quoted in the opinion) were conspicuously clear, according to the court.Īs for the miscarriage of justice argument, the issue must "involve an increment of error more glaring than routine reversible error." Unfortunately for our defendant, there probably wasn't even a harmless error. He first argued that he was not adequately informed of the rights he was waving. Finally, the enforcement of the waiver should not result in a miscarriage of justice. Also, the judge should question the defendant specifically about his understanding of terms of the waiver and agreement, as well as inform him of its ramifications. The plea agreement should have a clear statement elucidating the waiver and delineating its scope. Waivers of appeal are presumptively enforceable and will be upheld so long as three elements are met. Only, he waived the right to appeal as part of the deal itself. Like many defendants, he suffers buyers’ remorse shortly thereafter and tries to appeal. ![]() The judge sentences him to the nadir of the range. The plea calls for a few levels of enhancement and a downward departure. ![]() Glen Rivera-Orta pleads guilty to leading a drug ring. By going beyond the exigible using supererogatory vocabulary, Judge Selya just took the simple matter of appealing a plea bargain and made it far more complicated. It is enough to make you defenestrate your lunch.
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