Erwin pled guilty to conspiracy to possess with the intent to distribute oxycodone. This offense was a Class C felony with a 20 year statutory maximum. The plea agreement Erwin signed provided that he waived his right to appeal if his sentence was within or below the applicable sentencing range for offense level 39. Additionally, the government agreed not to file additional criminal charges against Erwin and to also file a § 5K1.1 motion to reward his cooperation.

The government filed a § 5K1.1 motion and Erwin was sentenced to serve 188 months in the BOP. This sentence was well-below the applicable guideline range for offense level 39 and criminal history category I (262-327 months) as well as the statutory maximum for his offense of conviction (240 months). Nonetheless, despite his good fortune as well as the express terms of the plea agreement, Erwin appealed arguing that the district court erred by starting the guideline journey at offense level 39, resulting in a sentencing range well-above the 20 year statutory maximum. The government cross-appealed and alleged that Erwin’s appeal breached the plea agreement and sought a remand for de novo resentencing where it would “seek a modest increase in Erwin’s sentence in light of the appellate waiver.”

The Third Circuit found that Erwin’s appeal was meritless and fit squarely within the scope of the appellate waiver. Consequently, the waiver would be enforced unless an unusual circumstance of “an error amounting to a miscarriage of justice in his sentence” could be identified. The appellate court ruled that enforcing Erwin’s waiver would not work a miscarriage of justice.

The government was resolute that simply dismissing the appeal and affirming Erwin’s sentence was not a satisfactory remedy given the drain on precious resources brought on by this frivolous appeal. Instead, the government contended that because Erwin’s appeal constituted a breach of the plea agreement, his sentence should be vacated so it could either bring additional charges or withdraw its § 5K1.1 motion, both of which were contemplated by the plain language in the plea agreement. The Third Circuit found that because Erwin’s breach of the plea agreement occurred post-sentencing, his sentence would be vacated and the case remanded for resentencing relieving the government of its obligation to seek a downward departure for his cooperation.