Background
Kyle Lamar West pleaded guilty under a plea agreement containing an appeal waiver. In an earlier appeal, the Fifth Circuit remanded for further proceedings concerning restitution to a child victim. After an evidentiary hearing on limited remand, the district court increased the restitution award from $6,000 to $372,200.
West appealed again. The Government moved to dismiss the appeal, invoking the appeal waiver, or alternatively sought 30 additional days to file its merits brief if dismissal was denied. The motion arose after the Supreme Court held in Hunter v. United States that an appellate waiver is unenforceable when enforcement would cause a miscarriage of justice.
The Court’s Holding
In a published per curiam order, the Fifth Circuit carried the Government’s opposed motion to dismiss with the case, leaving the waiver issue for resolution after full adversarial briefing. The court also granted the Government’s alternative request for 30 days from any denial of the dismissal motion to file its appellee brief.
The order did not decide whether West’s appeal waiver is enforceable, whether his current appeal may proceed, or whether the revised restitution award is valid. Judge Higginson concurred, emphasizing Hunter’s intervening clarification and the developed restitution record. Judge Oldham dissented, arguing that the waiver should be enforced immediately and the appeal dismissed.
Key Takeaways
- The Fifth Circuit deferred, rather than denied, the Government’s motion to dismiss based on West’s appeal waiver.
- The parties will have an opportunity for full briefing before the court resolves whether the waiver bars the second appeal.
- The interim order leaves open both the enforceability of the waiver and review of the $372,200 restitution award.
Why It Matters
The order illustrates the procedural effect of Hunter’s recognition that enforcing an appeal waiver may be impermissible when it would produce a miscarriage of justice. It also shows that the Fifth Circuit intends to assess that issue through full adversarial briefing rather than resolve it summarily.
For practitioners, the decision underscores that carrying a dismissal motion with the case is not a ruling on the motion’s merits. The ultimate scope of West’s waiver and the validity of the increased restitution award remain unresolved.