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Fifth Circuit distinguishes departures and variances to uphold appeal waiver

By Douglas A. Berman

An intriguing little issue of sentencing procedures is addressed by the Fifth Circuit today in US v. Jacobs, No. 10-20043 (5th Cir. March 17, 2011) (available here), which gets started this way: Federal prisoner Marcus Eugene Jacobs pled guilty to one count of possessing stolen mail in violation of 18 U.S.C. § 1708.  In his signed plea agreement, Jacobs generally waived his right to appeal his sentence but preserved his right to appeal an upward departure from the Sentencing Guidelines not requested by the Government.  At sentencing, the district court imposed an upward variance from the Guidelines not requested by the Government.  Jacobs now contends that the upward-departure exception to the waiver allows him to challenge his sentence on appeal...continue to full post

Full post as published by Sentencing Law and Policy on March 17, 2011 (boomark / email).