                            In the

United States Court of Appeals
              For the Seventh Circuit

No. 06-2547

U NITED S TATES OF A MERICA,
                                                Plaintiff-Appellee,
                                v.

P ARRISH D. C OLE,
                                            Defendant-Appellant.


             Appeal from the United States District Court
      for the Northern District of Indiana, Hammond Division.
               No. 05 CR 65—James T. Moody, Judge.


        A RGUED JUNE 3, 2008—D ECIDED JUNE 30, 2009




  Before K ANNE, S YKES, and T INDER, Circuit Judges.
  S YKES, Circuit Judge. Parrish Cole entered into a
written plea agreement with the government in which
he acknowledged distributing less than 400 grams of
heroin and less than a kilogram of marijuana. The
district court accepted the plea agreement but found,
based on information in the presentence report, that
Cole should be held responsible for a greater quantity of
drugs than the amounts he had admitted in the agree-
ment. The court increased Cole’s guidelines range accord-
2                                               No. 06-2547

ingly and sentenced Cole to 97 months in prison, which
was nearly double the sentence Cole expected if the
court had followed the recommendations in the plea
agreement. Cole challenges his sentence; although in his
plea agreement he waived his right to appeal, he argues
that the appeal waiver is unenforceable because the
district court’s independent calculation of the drug quanti-
ties effectively nullified the agreement.
  We disagree. The enforceability of Cole’s appeal waiver
hinges on whether the drug quantities in Cole’s plea
agreement were binding on the district court for sen-
tencing purposes. Rule 11(c)(1)(C) of the Federal Rules
of Criminal Procedure provides that if the district court
accepts a plea containing an agreement between the
government and the defendant about a specific sentence,
sentencing range, or the applicability of a specific guide-
lines provision, policy statement, or sentencing factor,
the court is bound by the parties’ agreement for pur-
poses of sentencing. Cole’s drug-quantity admissions in
the plea agreement do not fall into any of these
categories but are instead factual stipulations that fall
outside Rule 11(c)(1)(C)’s scope and thus do not bind
the district court. See U.S.S.G. § 6B1.4(d). Accordingly,
when the district court independently quantified the
amount of drugs attributable to Cole based on informa-
tion in the presentence report, it did not nullify the plea
agreement. The appeal waiver in Cole’s agreement is
enforceable, and we dismiss his appeal.
No. 06-2547                                                3

                      I. Background
   Parrish Cole pleaded guilty to one count of distributing
heroin in violation of 21 U.S.C. § 841(a)(1). As part of
his written plea agreement with the government, Cole
agreed that he had distributed between 100 and 400 grams
of heroin and between 250 and 1,000 grams of marijuana.
Cole also agreed to forfeit (among other things) $84,150
in cash, which he acknowledged he earned through his
drug trade. In addition to dropping eight other narcotics-
related charges, the government agreed to recommend
a reduction in Cole’s offense level for acceptance of respon-
sibility and a sentence equal to the low end of his ap-
plicable guidelines range. Cole’s plea agreement also
included a waiver of his right to appeal his sentence.
  The district judge waited until after he had received
and reviewed the presentence report before accepting the
plea agreement’s recommendations. That report recom-
mended converting the cash Cole agreed to forfeit into a
drug quantity for sentencing purposes, see United States v.
Rivera, 6 F.3d 431, 446-47 (7th Cir. 1993), something that
neither the government nor Cole had considered during
plea negotiations. At sentencing the government asked the
district court to adhere to the drug quantities Cole had
admitted in his plea agreement in determining Cole’s
sentence, but the district court declined to do so; the judge
concluded that U.S.S.G. § 6B1.4(d) permitted him to reject
factual stipulations in the plea agreement. Adopting the
information in the presentence report, the court treated
the cash as the equivalent of 832 grams of heroin, which
raised Cole’s offense level by six levels and nearly doubled
4                                                No. 06-2547

his applicable guidelines range. The district court sen-
tenced Cole to 97 months’ imprisonment, at the bottom
of the advisory guidelines range. Cole appealed his
sentence, arguing that the district court erred by rejecting
the drug quantities in his plea agreement.


                      II. Discussion
  The government asks us to dismiss this appeal because
Cole waived his right to appeal his sentence in his plea
agreement. As a general rule, a defendant may waive the
right to appeal his conviction and sentence, F ED . R. C RIM.
P. 11(b)(1)(N), and appeal waivers are generally valid if
they are made knowingly and voluntarily. See United
States v. Franklin, 547 F.3d 726, 731-32 (7th Cir. 2008).
However, a knowing and voluntary waiver might not be
enforceable if the plea was not taken in compliance
with Rule 11 of the Federal Rules of Criminal Procedure.
United States v. Wenger, 58 F.3d 280, 282 (7th Cir. 1995) (“If
the agreement is voluntary, and taken in compliance
with Rule 11, then the waiver of appeal must be honored. If
the agreement is involuntary or otherwise unenforceable,
then the defendant is entitled to appeal.”); see also United
States v. Lockwood, 416 F.3d 604, 608 (7th Cir. 2005) (observ-
ing that waivers are unenforceable if the defendant has
been sentenced based on constitutionally impermissible
criteria, the sentence exceeds the statutory maximum, or
the defendant received ineffective assistance of counsel
during plea negotiations and sentencing proceedings).
  Cole contends that the district court’s sentencing deci-
sion did not comport with the requirements of Rule 11
No. 06-2547                                                  5

and therefore the plea agreement was effectively nullified
and the appeal waiver is unenforceable. See, e.g., United
States v. Hare, 269 F.3d 859, 860 (7th Cir. 2001) (“A waiver
of appeal is valid, and must be enforced, unless the agree-
ment in which it is contained is annulled . . . .”). The merits
of Cole’s Rule 11 claim are intertwined with the
enforceability of his appeal waiver; if Rule 11 did not
require the district court to use the drug-quantity
amounts in Cole’s plea agreement for sentencing pur-
poses, then the plea is valid and Cole’s appeal waiver
is enforceable. Thus, “the plea and the waiver stand or
fall together.” Latham v. United States, 527 F.3d 651, 653
(7th Cir. 2008).
  Plea agreements are governed by Rule 11(c), which
makes some types of agreements between the govern-
ment and a defendant binding upon the district court
and others not. For example, if the parties “agree that a
specific sentence or sentencing range is the appropriate
disposition of the case, or that a particular provision of
the Sentencing Guidelines, or policy statement, or sen-
tencing factor does or does not apply,” FED. R. C RIM. P.
11(c)(1)(C), the district court is bound by the parties’
agreement if the court chooses to accept the plea, id.
11(c)(4). See United States v. O’Neill, 437 F.3d 654, 655-57
(7th Cir. 2006) (describing the operation of a “lock-in”
plea agreement under Rule 11(c)(1)(C)). Cole contends
that once the district court accepted his plea, Rule
11(c)(1)(C) required the district court to use the drug-
quantity amounts in the plea agreement in its sentencing
analysis; the court could not accept the plea, Cole argues,
without also accepting the factual stipulations in the
6                                                No. 06-2547

agreement. Cf. United States v. Martin, 287 F.3d 609, 622
(7th Cir. 2002) (“A plea agreement is a unified document,
and even if the district court wanted to it could not
accept part and reject part.”).
   Not all particularized provisions in a plea agreement
operate to make a plea agreement binding on the district
court. See F ED. R. C RIM. P. 11(c)(1)(B) (providing that the
district court is not bound by the parties’ agreement
that the government will “recommend, or agree not to
oppose the defendant’s request, that a particular sen-
tence or sentencing range is appropriate or that a partic-
ular provision of the Sentencing Guidelines, or policy
statement, or sentencing factor does not apply”). Cole’s
plea agreement contained many provisions explicitly
preserving the nonbinding character of the agreement.
For example, the agreement specifically stated that the
district court “will determine the applicable guidelines
range” and “will determine all matters, whether factual or
legal, relevant to the application” of the guidelines, and
that “the specific sentence to be imposed . . . will be
determined by the judge.” Cole claims nonetheless
that other parts of the agreement—specifically his drug-
quantity admissions—were binding and that these
b r ou g h t h is agreem e n t w it h in t h e t e rm s of
Rule 11(c)(1)(C).1


1
  Cole thinks that the timing of the district court’s decision
sheds light on whether he entered into a Rule 11(c)(1)(C)
agreement. For support, he points out that a district court
confronted with a Rule 11(c)(1)(C) agreement may only accept
                                                (continued...)
No. 06-2547                                                    7

  Rule 11(c)(1)(C) only applies to agreements regarding
sentences, sentencing ranges, or sentencing factors; it
does not apply to factual stipulations. Typically, Rule
11(c)(1)(C) agreements explicitly contain an agreed-upon
sentence, e.g., United States v. Weathington, 507 F.3d 1068,
1070 (7th Cir. 2007), or an agreed-upon sentencing range,
e.g., United States v. Blinn, 490 F.3d 586, 587 (7th Cir. 2007).
Rule 11(c)(1)(C) agreements may also explain how an
agreed-upon sentence will be affected by a court’s resolu-
tion of disputed issues. See, e.g., United States v. Linder, 530
F.3d 556, 559 (7th Cir. 2008) (parties agreed defendant
would be sentenced to 50% of the low end of the ap-
plicable guidelines range).
  Cole’s plea agreement contains none of these indicia.
The paragraph in Cole’s plea agreement addressing the
amount of drugs he distributed does not contain an
agreement on “a specific sentence or sentencing range” or
an agreement regarding the applicability of any “particular



(...continued)
it, reject it, or defer a decision until the court reviews the
presentence report. F ED . R. C RIM . P. 11(c)(3)(A). Because the
court deferred a decision on accepting the recommendations
in the plea agreement until it reviewed the presentence report,
Cole claims he entered into a binding Rule 11(c)(1)(C) agree-
ment. But when or whether the district court accepts a plea
agreement has no bearing on whether a plea agreement is
binding or nonbinding under Rule 11(c)(1); the relevant
inquiry focuses on what the government and the defendant
agreed upon. See United States v. Bennett, 990 F.2d 998, 1004
(7th Cir. 1993).
8                                               No. 06-2547

provision of the guidelines, a policy statement, or a sen-
tencing factor.” FED. R. C RIM. P. 11(c)(1)(C). To the con-
trary, as we have noted, other portions of the agree-
ment specifically state that the district court “will deter-
mine the applicable guideline range” and “will determine
all matters, whether factual or legal, relevant to the appli-
cation” of the guidelines. The agreement also provides
that “the specific sentence to be imposed . . . will be
determined by the judge.” Nothing in the paragraph
containing Cole’s admissions as to drug quantities
altered these general provisions.
  Instead, Cole’s admissions regarding drug quantities
are the equivalent of a stipulation of facts that falls
outside Rule 11’s scope. The district court is not bound by
the parties’ stipulations, a point confirmed by the guide-
lines. See U.S.S.G. § 6B1.4 (“A plea agreement may be
accompanied by a written stipulation of facts relevant to
sentencing. . . . The court is not bound by the stipula-
tion, but may with the aid of the presentence report,
determine the facts relevant to sentencing.”) The com-
mentary accompanying § 6B1.4 emphasizes this point:
    Section 6B1.4(d) makes clear that the court is not
    obliged to accept the stipulation of the parties. Even
    though stipulations are expected to be accurate and
    complete, the court cannot rely exclusively upon
    stipulations in ascertaining the factors relevant to
    the determination of the sentence. Rather, in deter-
    mining the factual basis for the sentence, the court
    will consider the stipulation, together with the results
    of the presentence investigation, and any other relevant
    information.
No. 06-2547                                                9

(Emphasis added.) Simply mentioning a particular guide-
line provision (as Cole’s plea agreement does) is not
enough to convert a factual stipulation into a binding
Rule 11(c)(1)(C) agreement. If the parties meant to bind
the district court at sentencing, then the agreement
would have contained specific language to that effect. As
it was, the agreement explicitly left all aspects of the
guidelines calculation and the ultimate sentence up to
the court. As such, the court was free to accept the plea
yet rely on the presentence report to reach its own drug-
quantity findings notwithstanding the parties’ stipula-
tion about the drug quantities. During the Rule 11 plea
colloquy, Cole himself acknowledged that the drug-
quantity amounts were not binding; when the judge
advised him that the court was free to disregard the
recommendations in the plea agreement and that Cole
could face up to 20 years’ imprisonment, he said he
understood.
  Cole’s argument is similar to the one made by the
defendant in United States v. Bennett, 990 F.2d 998 (7th Cir.
1993). In Bennett the defendant had stipulated that he
was not a career offender, but he had concealed a
prior violent felony that the probation officer uncovered
while preparing the presentence report. 990 F.2d at 1000-
01. Although the government had asked the district
court to abide by the parties’ stipulation, we con-
cluded that the parties’ agreement as to the defendant’s
career-offender status did not bind the court because it
did not fall within the category of agreements that
Rule 11 makes binding in sentencing proceedings. Id. at
1002-04. True, the types of agreements that may bind a
10                                                 No. 06-2547

district court under Rule 11 have been expanded since
Bennett, compare id. at 1001 (quoting a prior version of
Rule 11(c)(1)(C) that provided that the parties might
agree that “a specific sentence is the appropriate disposi-
tion of the case”), with F ED. R. C RIM. P. 11(c)(1)(C) (provid-
ing that a district court may be bound by the parties’
agreement regarding specific sentences, sentencing
ranges, or the application of other guidelines provisions,
policy statements, or sentencing factors), but its rea-
soning is still sound. Rule 11(c)(1)(C) does not apply to
stipulated facts, and so the drug-quantity amounts in
Cole’s agreement did not constrain the district court’s
sentencing decision. Cole acknowledged as much in the
agreement itself and at his plea hearing when he said
he understood that the court retained complete freedom
to calculate the applicable sentencing guidelines range
and determine the appropriate sentence. Accordingly,
the district court did not nullify Cole’s plea by rejecting
the drug-quantity stipulations in the plea agreement, and
the appeal waiver in Cole’s plea agreement is enforceable.
  The appeal is D ISMISSED.




                             6-30-09
