In United States v. Markou, No. 11-94 (2d Cir. March 8, 2012), the court upheld a plea agreement’s appellate waiver, even though the district court described it incorrectly during the plea colloquy by telling the defendant that he was waiving his right to appeal in the event that it sentenced him to 365 months or more, not or less. The circuit nevertheless concluded that the defendant understood the waiver since he had “attended some college” and said he had read the agreement carefully, understood it and discussed it with counsel.
In United States v. Merisier, No. 10-2017-cr (2d Cir. March 6, 2012), the court held - again- that the new, lower FSA mandatory minimum sentences do not apply retroactively to defendants sentenced before the FSA’s enactment. Here, however, the panel noted that the defendant’s appeal was pending, and thus his case was not final, when the FSA was enacted. The panel urged the “executive” to “extend[] clemency that would bring this sentence in line with the FSA,” and noted that it “is of the view that clemency would serve the interests of justice in this case.”
