United States v. Dinish Watson ( 2022 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 22-1779
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DINISH L. WATSON,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Illinois
No. 3:21-cr-30031— David W. Dugan, Judge.
____________________
SEPTEMBER 7, 2022
____________________
Before EASTERBROOK, SCUDDER, and JACKSON-AKIWUMI,
Circuit Judges.
SCUDDER, Circuit Judge. Plea agreements are common in
federal criminal practice, and many contain a provision in
which the defendant, often in exchange for a concession from
the government, agrees to waive his right to appeal. Some de-
fendants nonetheless then appeal, with the government un-
derstandably often reacting by saying it wants the court to en-
force the waiver. Before us is a motion from the government
2 No. 22-1779
asking us to hold Dinish Watson to the waiver of appeal in his
plea agreement and, more generally, inviting us to revisit the
way we resolve appeals like this.
In denying the government’s motion, we largely adhere to
our current practice for addressing these circumstances. That
approach best balances the competing interests at stake while
also affording the government a fair opportunity to avoid in-
vesting unnecessary resources in appeals that should be dis-
missed on the basis of a plea agreement waiver.
I
Watson pled guilty to federal charges pursuant to the
terms of an agreement that waived his right to appeal any as-
pect of his conviction or sentence, subject to exceptions not
immediately relevant. Following sentencing Watson in-
structed his appointed counsel to file a notice of appeal. Coun-
sel did so but then moved to withdraw because he did not
practice in appellate courts. We then appointed another law-
yer and set a briefing schedule allowing 90 days for the open-
ing brief. The government reacted by pointing to the waiver
in the plea agreement and moving to dismiss the appeal.
In charting this course, the government noted our practice
of treating motions like this as a notice of its intent to seek
dismissal, as outlined in United States v. Manning, 755 F.3d
455, 456 (7th Cir. 2014) (Posner, J., in chambers), but asked us
to abandon that procedure. Within the ten days normally
available to oppose a motion, see Fed. R. App. P. 27(a)(3)(A),
Watson’s counsel responded and urged us to follow Manning,
and explained that he otherwise needed more time to confer
with his new client and to respond adequately to the govern-
ment’s request to dismiss the appeal.
No. 22-1779 3
We then invited the parties to expand on their positions
about the appropriate procedures for resolving appeals in-
volving waivers like this one.
II
A
We start by sketching the basic principles at play here.
Though we, like many courts, refer to agreements like Wat-
son’s as “appeal waivers,” that terminology is a touch too
loose and imprecise. See Garza v. Idaho, 139 S. Ct. 738, 744–45
(2019). A defendant does not, by entering one of these agree-
ments, waive his right to file a notice of appeal. Rather, he for-
feits only his ability to raise certain claims on appeal. Some
claims always remain available, either by the terms of the
agreement or because we will not enforce a waiver of partic-
ular rights. See, e.g., United States v. Adkins, 743 F.3d 176, 192–
93 (7th Cir. 2014). In short, even a broad waiver differs only in
degree, not in kind, from a normal guilty plea that bars many
claims. See Garza, 139 S. Ct. at 747.
Remember, too, that criminal defendants are entitled to
the effective assistance of counsel on direct appeal. See Evitts
v. Lucey, 469 U.S. 387, 396 (1985). And no doubt a first order of
business for defense counsel on appeal will be to consider
whether a waiver of appeal in a plea agreement leaves the de-
fendant with any non-frivolous ground for appeal. Part of
that consideration, of course, will include discussions with
the defendant whether to dismiss the appeal voluntarily, if
the waiver applies. See Fed. R. App. P. 42(b); 7th Cir. R. 51(f).
We know from experience that often defense counsel’s as-
sessment of a case and discussions with the defendant will
lead to a voluntary dismissal of a previously filed notice of
4 No. 22-1779
appeal. That is what has happened here. While the govern-
ment’s motion to dismiss was under advisement, Watson filed
his own motion to dismiss voluntarily. But in other instances
the defendant may want to press ahead with an appeal. In that
situation, defense counsel is not then obligated to raise what-
ever waived or otherwise foreclosed arguments the defendant
may demand. Rather, counsel owes a professional duty to the
court to refrain from frivolous litigation—risking discipline if
they press on with utterly meritless claims. See, e.g., United
States v. Patridge, 507 F.3d 1092, 1096–97 (7th Cir. 2007).
The Supreme Court struck a balance between these two
duties—one to the client and the other to the court—in Anders
v. California, 386 U.S. 738 (1967). As Anders is applied in this
Circuit, appointed counsel who deem an appeal frivolous
must file a formal brief explaining the nature of the case, con-
sidering the issues that the appeal might involve, and explor-
ing why each would go nowhere if argued. See United States
v. Edwards, 777 F.2d 364, 366 (7th Cir. 1985). The defendant
then has 30 days to file a response contesting counsel’s con-
clusion. See 7th Cir. R. 51(b). Once that deadline has passed,
and without a government submission, the Anders brief and
any response are submitted to a panel and we issue a decision
either accepting counsel’s conclusions and dismissing the ap-
peal or rejecting them and directing further briefing. The Su-
preme Court has suggested the Anders process is one good
way to determine whether a waiver forecloses an appeal.
Garza, 139 S. Ct. at 746 n.8, 749 n.14. And cases involving waiv-
ers are a mainstay of our Anders docket.
Our first foray into the procedures surrounding enforce-
ment of appeal waivers emphasized the need to comply with
our prescribed Anders process, even when a waiver is
No. 22-1779 5
involved. In United States v. Mason, 343 F.3d 893 (7th Cir.
2003), the government pointed to the waiver of appeal in a
plea agreement and moved to dismiss an appeal long before
the opening brief was due. We recognized the motion put
“pressure” on defense counsel and “effectively shortened by
several months … the time that counsel had in which to assess
Mason’s case and file a brief that … would comply with An-
ders.” Id. at 894. Counsel did so promptly and conceded the
waiver foreclosed all possible arguments on appeal. See id. We
nonetheless declined to rule on the motion and instead fol-
lowed our standard practice under Circuit Rule 51(b) of giv-
ing the defendant time to respond. It was only when that
deadline passed that we resolved the appeal as we would any
other Anders case. See United States v. Mason, 86 F. App’x 194,
195 (7th Cir. 2004).
Everything in Mason happened faster than usual: defense
counsel acted immediately in responding to the government’s
motion to dismiss and filing a thorough Anders submission.
Knowing that all of this takes more time across the mine run
of appeals, we suggested that extensions would be freely
granted in future cases. See 343 F.3d at 895.
One such request for an extension of time came in Man-
ning, and it was that motion that prompted Judge Posner to
write an in-chambers opinion providing guidance for the han-
dling of these situations. With or without a motion to dismiss
an appeal from the government, he observed, defense counsel
would have to either file an Anders brief conceding the waiver
foreclosed any appellate arguments or submit a nonfrivolous
contention that escapes the waiver: the only difference was
the shorter time to do so. See 755 F.3d at 455. But that differ-
ence all but disappears once necessary extensions become
6 No. 22-1779
involved. Judge Posner therefore construed an early motion
to dismiss as a “notice of intent to enforce the appeal waiver,”
which he thought would “have the same accelerating effect as
a motion to dismiss, while requiring less work for both sides
and preserving the briefing schedule.” Id. at 456.
By and large our court has followed the Manning proce-
dure for nearly the last decade.
B
The government now asks us to chart a different path for-
ward. It suggests that it should be allowed to file a motion to
dismiss early in the appeal asserting that all potential argu-
ments are foreclosed because of the waiver. It then proposes
we suspend briefing and give defense counsel 30 days (with
liberal extensions) to file either a response identifying the ar-
guments she intends to make that escape the waiver or in-
stead a formal Anders brief agreeing with the motion, at which
point the standard Anders process would kick in. This system,
the government insists, will more swiftly resolve cases with
appeal waivers—benefitting both itself and, indirectly de-
fendants by making plea waivers more valuable bargaining
chips. See United States v. Worthen, 842 F.3d 552, 555–56 (7th
Cir. 2016). Otherwise, the government posits, it will find itself
having to file briefs arguing for both the enforcement of the
waiver and, in the alternate, affirmance on the merits even in
cases where it is obviously entitled to dismissal.
No doubt the government should not as a matter of course
have to submit full merits briefs in every case where the de-
fendant agreed to an appeal waiver. The whole point of the
waiver, after all, is to realize a savings of resources. Proper
application of the Manning procedure allows for just that.
No. 22-1779 7
What we often see is what we would expect from defense
counsel complying with their professional obligations: they
either convince their clients to dismiss an appeal or file an An-
ders brief. Neither resolution requires any input from the gov-
ernment—and definitely not a merits brief.
Indeed, Watson’s counsel offers data from his own prac-
tice as one of this circuit’s skilled and experienced public de-
fenders. He suggests that over 80% of appeals with waivers
follow one of these two paths to resolution, with the most
travelled being voluntary dismissal. The government coun-
ters with its own statistics, pointing us to 42 appeals over the
last eight years where we enforced a waiver only after full
briefing. Some of these cases surely involved thorny questions
that demanded a close look. But the government’s number is
less dire when one compares it to our 12 Anders orders enforc-
ing appeal waivers in the last year alone. In none of these cases
was a motion to dismiss or a notice of intent filed.
Nothing about our current practice requires any meaning-
ful fixing. A motion to dismiss is redundant if we presume—
as we do—that defense lawyers will comply with their pro-
fessional obligations to not brief frivolous arguments. We see
no benefit to converting a motion to dismiss into an alterna-
tive Anders process with its own special timetable when our
established Anders procedure already provides a schedule
that gives counsel ample time to review the record and effec-
tively advise a client. The government’s proposal creates only
more work for the government itself (which must prepare the
motion), for defense counsel (who must file on an expedited
schedule or seek extensions), and for us (who must oversee
all this).
8 No. 22-1779
The government’s filing a motion to dismiss before the
opening brief is for the most part premature. Again, even a
broad appeal waiver forecloses only certain arguments, not
the appeal itself, and a defendant has no obligation to identify
what arguments he may bring when filing a notice of appeal.
See Fed. R. App. P. 3(c); Garza, 139 S. Ct. at 745. Neither coun-
sel nor the defendant have done anything incompatible with
the waiver unless and until they press an argument the waiver
forecloses. The grounds for dismissal do not exist until those
arguments are made in the opening brief. To the extent the
government fears new counsel might make such an argument
because they overlooked the waiver in their review or gam-
bled blindly on the government’s “waiving the waiver,” a no-
tice of intent performs that function. See Manning, 755 F.3d at
456. Though equally effective might be a polite phone call or
email.
A motion to dismiss based on an appeal waiver may be
most appropriate after a brief is filed. At that point we need
not predict whether the defendant will make only waived ar-
guments. We can just review the defendant’s brief.
The practice that has grown up under Manning allows the
government to file such a motion. Manning’s notice was al-
ways something to be submitted “before filing a motion to dis-
miss.” Id. at 456 (emphasis added). The government’s confu-
sion seems to rest on a misunderstanding of other decisions
holding motions to dismiss must be filed early in the case. See,
e.g., United States v. Lloyd, 398 F.3d 978, 980–81 (7th Cir. 2005).
In each we confronted motions to dismiss that were filed im-
mediately before the appellee’s brief was due, apparently as a
“self-help extension of time.” Id. at 980. Although certain ju-
risdictional and venue issues should be raised at the first
No. 22-1779 9
opportunity, see 7th Cir. R. 3(c); Ramos v. Ashcroft, 371 F.3d
948, 950 (7th Cir. 2004), an appellee who seeks dismissal based
on the arguments that the appellant’s brief might raise can,
and should, wait until after that brief has been filed. Such a
motion should be filed promptly after the appellant’s brief—
ideally within a week—given the ease of comparing the brief
with the waiver. Otherwise, the government remains free to
seek to enforce a waiver in its own brief.
To be sure, even a persuasive motion to dismiss timely
filed after the appellant’s brief may not be granted. That real-
ity reflects our general disfavor towards motions seeking
summary resolution that so often multiply the number of
judges that must consider the case and review the record. See
United States v. Fortner, 455 F.3d 752, 754 (7th Cir. 2006); Lloyd,
398 F.3d at 980. Still, we will grant such a motion when “the
arguments in the opening brief are … completely insubstan-
tial,” whether because of a waiver or for any other reason.
Fortner, 455 F.3d at 754. That means some non-frivolous, but
ultimately waived, arguments may end up going through full
briefing. But this possibility is just a necessary cost of the
sometimes difficult task of separating waived and unwaived
arguments. See Garza, 139 S. Ct. at 749.
In sum, then, our procedures for resolving cases with ap-
peal waivers, at least if Anders applies, are as follows:
1. We continue to discourage the government from mov-
ing to dismiss before the defendant has filed his brief.
A motion filed before the opening brief will be con-
strued as only a notice of intent to stand on the waiver.
2. A notice of intent does not alter the briefing schedule
or the obligations of defendant’s counsel. If counsel
sees no way to proceed with an appeal, she should
10 No. 22-1779
move to withdraw and file an Anders brief. The court
will resolve the motion to withdraw consistent with
Circuit Rule 51.
3. If counsel instead files a brief raising arguments on the
merits, the government may then move to dismiss the
appeal based on the waiver (without any accompany-
ing merits briefing) and should do so well before its
own brief deadline. In the hopefully rare event that the
appellant’s brief ignores the waiver or offers only
flimsy arguments for escaping it, a motions panel will
dismiss the appeal after considering any response.
4. The government is not obligated to file either a notice
of intent or a motion to dismiss to preserve its rights
under the agreement. If it does not take either action,
or if a motions panel denies its motion to dismiss, it
remains free to argue for enforcement of the waiver in
its own brief.
Because we intend to adopt this as the uniform procedure for
handling these matters in our Circuit, we have circulated this
opinion among all active judges pursuant to Circuit Rule
40(e). No judge favored hearing en banc.
III
Consistent with the procedure adopted above, we DENY
the government’s motion to dismiss, except to the extent that
we construed it as a notice of intent to enforce Watson’s ap-
peal waiver. We will issue a separate order dismissing the ap-
peal on Watson’s own motion.