Monday, November 01, 2004

Motion for dismissal treated as one for summary affirmance. In United States v. Monsalve, the defendant agreed to plead guilty to one count of conspiracy with intent to distribute greater than one kilogram of heroin. However, at sentencing, her counsel objected to her sentence on the ground that because the defendant had not orally admitted to a drug type or quantity, her sentence should not be based on greater than one kilogram of heroin. She appealed on that ground.

The Government moved to dismiss the appeal based on the defendant's waiver of appeal in the plea agreement. The Court agreed that the defendant had waived her appellate rights, but that certain statutory rights could not be waived. The Court held that the defendant's only contention on appeal -- that her sentence violated her Sixth Amendment under Blakely v. Washington because the District Court imposed the mandatory minimum sentence based on a drug type and quantity that she had not verbally admitted during her plea colloquy -- was frivolous and treated the Government's motion as one for summary affirmance, and affirmed the sentence imposed by the District Court.

The decision can be found here.

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