United States v. Spear

Knowing and voluntary waiver of a defendant's right to appeal sentence does not extend to right to the defendant's right to appeal his conviction.

The defendant Harold C. Spear, III, M.D., ("Spear") was convicted by guilty plea to five counts of distributing controlled substances outside the usual course of professional medical practice and not for a legitimate medical purpose. Spear attempted to withdraw his guilty plea twice, the first time recanting, and the second time the court denied his withdrawal. He was convicted and sentenced after having his waiver of his right to appeal his sentence explained to him by the judge. He then filed timely appeal on his conviction arguing "that his guilty plea lacked a sufficient factual basis, that the government breached the plea agreement and that the district court abused its discretion by denying his motion to withdraw his guilty plea." The Ninth Circuit held that because the Government's waiver of rights to appeal included language only pertaining to sentence and not to conviction that the defendant's knowing and voluntary waiver of his right to appeal his sentence did not extend to his right to appeal his conviction. "The government is entitled to receive 'what it bargains for but nothing more.' Because the scope of Spear’s appellate waiver concerned only his sentence and the issues raised in this appeal concern only his conviction, Spear did not waive his right to bring this appeal." The panel filed a concurrent memorandum disposition and, based on that memorandum, the conviction was AFFIRMED.