                          In the
 United States Court of Appeals
              For the Seventh Circuit
                       ____________

No. 03-1693
UNITED STATES OF AMERICA,
                                           Plaintiff-Appellee,
                             v.

TRACY L. PARKER,
                                       Defendant-Appellant.

                       ____________
          Appeal from the United States District Court
                for the Central District of Illinois.
        No. 02 CR 20072—Michael P. McCuskey, Judge.
                       ____________
    ARGUED FEBRUARY 20, 2004—DECIDED MAY 26, 2004
                    ____________


 Before FLAUM, Chief Judge, BAUER and MANION, Circuit
Judges.
  FLAUM, Chief Judge. Tracy L. Parker pled guilty to con-
spiracy to escape from the custody of the Attorney General
in violation of 18 U.S.C. § 371 and to attempt to escape in
violation 18 U.S.C. § 751(a). The district court found Parker
guilty as charged and sentenced him to forty-eight months’
imprisonment on each of the two counts of the indictment,
with the sentences to run consecutively. In this appeal,
Parker requests that this Court vacate his conviction and
allow him to withdraw his plea of guilty, contending that
the district court violated Federal Rules of Criminal
2                                              No. 03-1693

Procedure 11 by failing to inform him of its discretion to
depart upwardly from the applicable sentencing guideline
range. Additionally, Parker argues that the imposition of
consecutive sentences for attempt to escape and conspiracy
to escape violates the Double Jeopardy Clause, U.S. CONST.,
amend. V, and requests that this Court remand to the
district court with a direction to dismiss one count of the
indictment with prejudice. For the reasons discussed below
we affirm Parker’s conviction.


                     I. Background
   In September 2000, Tracy L. Parker was in federal
custody awaiting sentencing as an felon in possession of a
firearm in the Central District of Illinois. Parker had
previously pled guilty to that charge. At the same time,
Parker’s related burglary charge was pending in state court
in Edgar County, Illinois. While awaiting the federal
sentencing, Parker was being held with other federal de-
tainees at the DeWitt County Jail in Illinois.
  Parker confided in Aaron French, a fellow federal de-
tainee at the DeWitt County Jail, that he planned to escape
when sent back to the Edgar County Courthouse for
sentencing for the burglary conviction. Parker explained
that his friend, Derek Sronce, would be willing to bring a
gun to the courthouse on the day of his sentencing, but that
Sronce needed to acquire a gun in order to do so. French
arranged for a friend to deliver French’s Smith & Wesson
.357 revolver and ammunition to Sronce.
  On September 27, 2000, Parker wrote a letter to Sronce
to complain that Sronce had failed to meet French’s friend
for the gun delivery, and to urge Sronce to get the gun from
French’s friend. The next day, Parker was sentenced
according to the federal Sentencing Guidelines on his fed-
eral gun charge, receiving a reduction to the mandatory
minimum for providing substantial assistance pursuant to
No. 03-1693                                                 3

U.S.S.G. § 5K1.1. The district court admonished Parker
that he was a strong candidate for an upward departure
due to his extensive criminal history and warned him that
he faced a severe sentence if he ever returned to the district
court on criminal charges.
  On October 4, 2000, Parker wrote another letter to Sronce
from the DeWitt County Jail instructing him to obtain the
gun from French’s friend on October 8. Sronce wrote back
to indicate that October 8 would be a convenient day to
accept the delivery. On October 8, French’s friend met
Sronce at Sronce’s home and gave him an unloaded Smith
& Wesson .357 handgun in a plastic bag.
  Parker was scheduled to plead guilty to the pending state
burglary charge and to be sentenced at the courthouse on
Friday, October 13, 2000. Parker requested a continuance
to October 18, 2000, the following Wednesday, explaining
that he wished his mother to be present at the sentencing,
but that she could not be present until that time. In fact,
Parker had requested the continuance not to accommodate
his mother’s travels, as she was actually in the vicinity on
October 13. Instead, he sought the continuance because he
believed that his escape plan was less likely to succeed on
a Friday than on a Wednesday: Parker knew that it was the
practice of the Edgar County jail to send two officers to the
courthouse with inmates on Fridays, but to send only one
officer to the courthouse on Wednesdays.
  Sronce visited Parker at the Edgar County Jail on
October 13, 2000. During the visit, Parker instructed Sronce
to place the gun near or behind the radiator located by the
basement door of the courthouse. Parker explained that he
would use the gun to escape after his court appearance on
the following Wednesday.
  Sronce brought the gun to the courthouse on October 18,
2000, according to the plan. When Sronce realized that two
4                                              No. 03-1693

law enforcement officers were on duty at the courthouse,
Sronce decided to abort the plan. Sronce did not leave the
gun for Parker by the radiator or anywhere else in the
courthouse. Following the proceedings, Parker was trans-
ferred back to the DeWitt County Jail to await further
transfer to the Federal Bureau of Prisons. The following
day, Sronce sold the gun to a gun collector.
  On October 20, 2000, the DeWitt County Jail intercepted
a letter written by Sronce to Parker in which Sronce apol-
ogized for the failed escape attempt. Sronce explained that
he had deviated from the plan because two law enforcement
officers were present at the courthouse on October 18, and
Parker had previously directed him to forgo the gun drop
under those circumstances. Parker wrote a letter in re-
sponse expressing his disappointment and instructing
Sronce to give the gun and shells to Parker’s mother.
  In September 2002, a federal grand jury charged Parker
in a two-count indictment with conspiracy to escape in
violation of 18 U.S.C. § 371 and attempt to escape in vio-
lation of 18 U.S.C. § 751(a). On October 30, 2002, Parker
pled guilty to both counts without the benefit of a plea
agreement. The district judge engaged Parker in a fifty-five
minute change of plea colloquy. The district judge remarked
that Parker had recently appeared before him for sentenc-
ing in a different matter, and that Parker’s previous
sentence was reached “under the sentencing guidelines.”
During the plea colloquy, the district court confirmed that
neither Parker nor defense counsel had any intention of
moving for a downward departure in the present case. The
district court informed Parker of the statutory maximum
possible punishment of each of the two counts charged in
the indictment. On each count, the court explained, Parker
could lawfully be sentenced to five years’ imprisonment, in
addition to a fine if Parker could afford to pay it, three
years’ supervised release, and a special assessment. The
district court asked Parker whether he understood that his
No. 03-1693                                                5

guilty plea would change his offense level and criminal
history category for sentencing “under the guidelines,” and
Parker answered in the affirmative. The district court also
asked Parker whether he agreed to “let your presentence
report determine your offense level, your criminal history
calculation, and then put yourself before me for sentencing
within the guidelines?” Parker assented. The district court
repeatedly inquired whether Parker understood that no
promise had been made regarding his sentence “other than
it’s within the guidelines,” each time Parker answered
“[y]es.” Parker indicated that he understood that the
district court could sentence him “to the maximum within
the guidelines irrespective of the[ ] recommendations” of
government and defense counsel.
  On December 13, 2002, the probation office issued a
presentence report which stated that the district court could
depart from the otherwise applicable guideline range on the
basis of Parker’s criminal history. Later that month, the
United States indicated by letter that it believed an upward
departure was appropriate based on factors including and
additional to those indicated in the presentence report. On
January 6, 2003, Parker objected to the upward departure
suggested in the presentence report and requested a
downward departure. The United States filed a commentary
on sentencing factors on January 13, 2003, requesting
upward departures on the basis of: (1) Parker’s understated
criminal history; (2) Parker’s intent to utilize a gun during
the attempted escape; and (3) Parker’s downward departure
in his previous case, which was granted during the pen-
dency of the escape conspiracy. On January 17, 2003,
Parker filed a commentary on sentencing factors, wherein
he objected to the United States’ requests for upward
departures on the grounds that the upward departures
could “not be satisfied by imposing consecutive sentences”
for the two convictions due to the grouping criteria of the
sentencing guidelines, U.S.S.G. § 3D1.2, and further that
the upward departures suggested were not merited by the
6                                                No. 03-1693

facts of Parker’s case. Parker also argued that a U.S.S.G.
§ 5K2.0 downward departure for substantial assistance was
possible despite the absence of a motion from the United
States. In neither the January 6 nor January 17 commen-
taries did Parker argue that the district court had fore-
closed the option of upward departures due to its promise
to Parker of a sentence “within the guidelines,” nor did
Parker move to withdraw his guilty plea.
  At the January 17, 2003 sentencing hearing, the district
court defined the requests for upward and downward
departures and allowed both parties to argue extensively
in regard to the proposals. Defense counsel urged that the
grouping rules of the guidelines precluded the district court
from achieving the ultimate guideline sentence through the
imposition of consecutive sentences, even if the district
court decided that an upward departure was merited. At
the same time, defense counsel specifically disclaimed any
intention to challenge the consecutive sentences on the
basis of the Double Jeopardy Clause, U.S. CONST., amend.
V. Before concluding the hearing, the district judge inquired
whether Parker had any objections to the presentence
report independent of those presented by his attorney and
also offered Parker the opportunity to address the district
court in allocution. The district court indicated that it would
depart upward, but continued the sentencing hearing to
March 7, 2003 to allow the parties to file additional com-
mentary.
  The United States filed a supplemental commentary on
sentencing factors on January 31, 2003, wherein it further
argued that the district court was authorized by U.S.S.G.
§ 4A1.3 and U.S.S.G. § 5K2.0 to depart upward from the
otherwise applicable guideline range due to the specific
facts of Parker’s attempt and conspiracy to escape, the
unwarranted downward departure he received in his pre-
vious federal case, and Parker’s extensive criminal history.
The United States also argued that the district court should
No. 03-1693                                                7

impose consecutive sentences on the two counts of convic-
tion. Parker responded on February 7, 2003, again arguing
that the facts did not merit upward departures, that the
upward departures could not be achieved by consecutive
sentences, and that a downward departure was appropriate.
The defense did not argue that the terms of the plea
colloquy precluded the district court from departing upward
from the otherwise applicable sentencing range, nor did
Parker move to withdraw his guilty plea at that time.
  On March 7, 2003, the district court issued its written
ruling in open court. The district court determined that
Parker’s initial offense level was fourteen and his criminal
history category was VI, meriting a sentence of thirty-seven
to forty-six months. The district court found that an upward
departure of seven levels was warranted: five levels to
reflect the seriousness of Parker’s past criminal conduct and
recidivist nature, followed by two additional levels due to
Parker’s intention to utilize a gun during the escape. The
resulting offense level was twenty-one, while the criminal
history category remained VI, leading to a guideline
sentencing range of seventy-seven to ninety-six months.
The district court sentenced Parker to ninety-six months of
imprisonment, consisting of a forty-eight-month term for
each count, the terms to be served consecutively. In addi-
tion, the district court ordered three years of supervised
release and a $200 special assessment. Parker did not
request to withdraw his guilty plea prior to his sentence
being imposed by the district court. Parker filed a notice of
appeal from the judgment on March 14, 2003.


                       II. Analysis
  Parker raises two issues on appeal. First, Parker main-
tains that the district judge did not comply with Rule 11 of
the Federal Rules of Criminal Procedure because he did not
8                                                No. 03-1693

include in the change of plea colloquy an admonishment
that the district court may, in the exercise of its discretion,
depart upward from the applicable sentencing guideline
range. Because Parker made no objection to the district
court’s statements during the plea colloquy, and because
Parker did not move to withdraw his plea in the district
court, he may withdraw his plea only if he establishes that
the district court plainly erred, affected his substantial
rights, and seriously affected the fairness, integrity or
reputation of judicial proceedings. See United States v.
Vonn, 535 U.S. 55, 58-59, 63 (2002).
  In relevant part, Rule 11(b)(1) requires that a district
court “address the defendant personally in open court”
before accepting a plea of guilty. Fed. R. Crim. P. 11(b)(1).
“During this address, the court must inform the defendant
of, and determine that the defendant understands, the
following: . . . (M) the court’s obligation to apply the Sen-
tencing Guidelines, and the court’s discretion to depart from
those guidelines under some circumstances.” Fed. R. Crim.
P. 11(b)(1)(M). Parker maintains that the plea colloquy did
not comply with Fed. R. Crim. P. 11(b)(1)(M) because the
district court not only failed to adequately inform Parker of
the possibility of upward departures, but also implied that
his sentence would be within the applicable guideline range
for his base offense level and criminal history category,
absent any upward departures. Parker argues that the plea
colloquy led him to believe that no upward departures were
contemplated by the district court because the district court
stated that Parker’s sentence would be “within the guide-
lines,” rather than “pursuant to the guidelines.”
  To demonstrate that the phrase “within the guidelines”
typically means a sentence that is within the applicable
guideline range, without any departures, Parker cites to
U.S.S.G. § 1A1.1, where the Sentencing Commission em-
ployed the phrase “within the guidelines” to illustrate a
sentence achieved absent departures. Parker also cites to
No. 03-1693                                                9

numerous circuit court opinions that employ the term
“within the guidelines” to describe sentences within the
applicable guideline range, absent departures. See United
States v. Tucker, 892 F.2d 8, 11 (1st Cir. 1989); United
States v. Colon 884 F.2d 1550, 1554 (2d Cir. 1989).
  We agree with Parker that, in the context of a Rule 11
change of plea colloquy, a statement by the district court
that a particular sentence would be reached “pursuant to
the guidelines” would communicate with greater clarity the
possibility of a departure from applicable guideline range
than does an assertion that the sentence would be “within
the guidelines.” Additionally, the district court would have
more precisely communicated this possibility if it had also
paused to underscore its discretion under the guidelines to
assign upward departures when a particular case presents
atypical circumstances.
  That said, we conclude that any potential for miscom-
munication arising from the district court’s repeated use of
the phrase “within the guidelines” was mitigated during the
remainder of Parker’s change of plea colloquy. Examined in
context, it is clear that when the district court used the
phrase “within the guidelines,” the court invoked the
guidelines as a whole. Contrary to Parker’s view, as em-
ployed by the district court during the Rule 11 colloquy, the
phrase “within the guidelines” was not in reference to the
narrow guideline range applicable to Parker’s base offense
level and unmodified criminal history category. The district
court did not indicate that Parker’s sentence would be
“within the applicable guideline range,” nor did the district
court suggest an intention to relinquish its discretion to
depart from that range. Rather, the district court promised
a sentence “within the guidelines” even while highlighting
its authority to reject the recommendations of counsel
regarding the calculation of Parker’s base offense level and
criminal history category. The district court also reminded
Parker of the possibility of departures on two occasions:
10                                              No. 03-1693

first, the district judge mentioned that he could not recall
whether Parker’s previous federal sentence had involved a
departure, and second, the district judge inquired whether
the defense intended to move for any downward departures.
Although these comments did not explicitly mention the
possibility of upward departures, they adequately informed
Parker of the district court’s discretion to depart from the
otherwise applicable guideline range, and therefore com-
plied with the requirements of Fed. R. Crim. P. 11(b)(1)(M).
  “The core concern in issue is whether [the defendant] . . .
understood the consequences of his plea.” United States v.
Mitchell, 58 F.3d 1221, 1225 (7th Cir. 1995). During the
plea colloquy, Parker indicated that he understood that the
statutory maximum term of incarceration for each of the
counts of the indictment was five years. His decision to
enter a plea despite this warning demonstrates that Parker
contemplated the possibility of a sentence exceeding the
applicable guideline range, pre-departures, which was
determined to be between thirty-seven and forty-six
months. Therefore, because the “total circumstances sur-
rounding the plea [demonstrate] that the defendant was
informed of his rights and understood the consequences of
his plea,” Id. at 1224, we conclude that the purpose of Rule
11 was served and the district court did not plainly err in
this case.
  Further, any misleading statement during the plea col-
loquy of the potential sentence would not entitle Parker to
withdraw his guilty plea because he has not shown a vio-
lation of his substantial rights. See Fed. R. Crim. P. 11(h);
Vonn, 535 U.S. at 58-59, 63. This Court employs “a ‘totality
of the circumstances’ analysis to determine whether any
Rule 11 violations would have likely affected [the defen-
dant’s] willingness to plead guilty.” United States v. Marti-
nez, 289 F.3d 1023, 1029 (7th Cir. 2002). Factors appropri-
ate for consideration include “whether the sentence the
defendant actually received was within the warned range.”
No. 03-1693                                              11

United States v. Saenz, 969 F.2d 294, 297 (7th Cir. 1992).
As mentioned above, Parker was warned of a term of five
years of imprisonment on each count. Parker was sentenced
to a term of four years’ imprisonment on each count: his
prison term does not exceed that which the district court
advised.
  Second, “another factor we consider is whether the de-
fendant would not have pleaded guilty if the error had not
occurred.” Saenz, 969 F.2d at 297. Even if Parker had
misunderstood the district court during the change of plea
colloquy, his actions demonstrate that he would have
entered a plea of guilty even if the district court had more
clearly suggested the possibility of upward departures from
the applicable guideline range. After Parker received the
presentence report and the United States’ commentary on
sentencing factors, Parker comprehended the strong
possibility of a sentence reflecting an upward departure, as
both the probation office and prosecution had encouraged
the district court to depart upward. In response, Parker
presented multiple arguments in opposition to the contem-
plated upward departures—he argued that the guidelines’
grouping rules precluded the district court from achieving
the ultimate guideline sentence through the imposition of
consecutive sentences; that the methods that he had em-
ployed in the conspiracy and attempt to escape did not
merit upward departures, and lastly that his criminal
history did not merit an enhanced sentence—but he never
argued before the district court that the terms of the plea
colloquy foreclosed the imposition of upward departures.
His decision to challenge the proposed departures on
grounds other than his alleged misunderstanding of the
phrase “within the guidelines” belies his claim that this
misunderstanding was the basis of his decision to plead
guilty. Further, in suggesting to the district court that it
depart downward, Parker provided additional confirmation
that he understood that the district court had authority to
depart from the otherwise applicable guideline range.
12                                               No. 03-1693

  Lastly, the overwhelming evidence of Parker’s guilt pre-
cludes Parker from persuading us that the error effected his
substantial rights. See United States v. Kelly, 337 F.3d 897,
905 (7th Cir. 2003). The evidence against Parker included
his handwritten correspondence with Sronce describing the
escape plan and the reasons for its failure, in addition to
the recovery of the gun that Sronce had acquired for the
purpose of facilitating the escape. With this inculpatory
evidence, it is unlikely that Parker would have withdrawn
his plea and faced a jury trial even if the district court had
more cogently described the possibility of upward depar-
tures during the Rule 11 colloquy. As Parker was likely
aware, the probable result of a jury trial was a verdict of
guilty, and the decision to proceed with the trial would have
deprived Parker of the three-level acceptance of responsibil-
ity reduction gained by the guilty plea. Therefore, we
conclude that any unclear statement by the district court
did not prejudice Parker’s decision to plead guilty, and
Parker’s argument in favor of withdrawing his plea must
fail.
  The remaining issue that Parker raises on appeal con-
cerns the consecutive nature of his sentences. Parker
argues that the consecutive sentences for conspiracy to es-
cape and attempt to escape are in violation of the Double
Jeopardy Clause, U.S. CONST., amend. V. Because “double
jeopardy is a personal right which if not affirmatively
pleaded at the time of trial will be regarded as waived,”
United States v. Buonomo, 441 F.2d 922, 924 (7th Cir.
1970), we must first address the government’s claim that
Parker did not properly preserve this argument for appeal.
  During the January 17, 2003 sentencing hearing, Parker
specifically informed the district court that he would not
pursue the double jeopardy argument. Defense counsel
stated that “[w]hen both convictions involve precisely the
same criminal conduct, . . . can you punish it twice? We’re
not saying that it’s double jeopardy.” In this comment,
No. 03-1693                                              13

defense counsel demonstrated that he had considered ad-
vancing a double jeopardy argument, but had ultimately
rejected it. By explicitly disclaiming the double jeopardy
argument, Parker deprived the district court of the oppor-
tunity to address the issue, and we therefore conclude that
the argument was waived and is not reviewable on appeal.
See United States v. Olano, 507 U.S. 725, 733 (1993) (waiver
is the intentional relinquishment or abandonment of a
known right) (internal quotations omitted).


                    III. Conclusion
  For the foregoing reasons, we AFFIRM Parker’s conviction.

A true Copy:
      Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




                   USCA-02-C-0072—5-26-04
