In the
United States Court of Appeals
For the Seventh Circuit

No. 00-3002

United States of America,

Plaintiff-Appellee,

v.

Tyrone Hare,

Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 2:99 CR 45-02--Rudy Lozano, Judge.

Argued October 2, 2001--Decided October 22, 2001



  Before Posner, Easterbrook, and Evans,
Circuit Judges.

  Easterbrook, Circuit Judge. Charged with
three federal crimes, Tyrone Hare made a
deal and pleaded guilty to one; as part
of the bargain the prosecutor dismissed
the other two and promised to recommend a
reduction of Hare’s offense level if he
cooperated. For his part, Hare promised
among other things not to appeal from the
sentence. The district judge sentenced
Hare to 188 months’ imprisonment after
denying him any reduction for acceptance
of responsibility. The judge concluded
that Hare had frivolously denied
responsibility for some of his deeds
(including relevant conduct), a
circumstance that had led the prosecutor
to withdraw support for a reduction.
Despite his promise not to do so, Hare
filed a notice of appeal, which the
United States asks us to dismiss.

  A waiver of appeal is valid, and must be
enforced, unless the agreement in which
it is contained is annulled (for example,
because involuntary). United States v.
Wenger, 58 F.3d 280 (7th Cir. 1995);
United States v. Jeffries, No. 00-2372
(7th Cir. Sept. 7, 2001). See also, e.g.,
United States v. Behrman, 235 F.3d 1049
(7th Cir. 2000); United States v.
Williams, 184 F.3d 666, 668 (7th Cir.
1999); United States v. Teeter, 257 F.3d
14, 23 (1st Cir. 2001) (collecting
cases). Hare did not ask the district
court to set aside his plea, and even on
appeal he does not seek that relief; he
wants the benefits of the agreement shorn
of one detriment, an outcome to which he
could not be entitled. He contends that
the United States did not keep its
promise to recommend a lower sentence,
and this might have been a basis either
to set aside the agreement or to order
specific performance, but he never asked
the district judge for either kind of
relief. Instead he stored up arguments
for appeal and now launches a blunderbuss
attack on the very possibility of waivers
as part of plea agreements--a nonstarter
given that Hare wants to leave his plea
in place and accept all of its benefits,
and a bad legal argument even if it were
open.

  Appeal is a statutory entitlement. Hare
believes that "public policy" forbids
waiver of entitlements created by
statute. But if this is so then the rest
of the plea agreement--indeed, the entire
institution of plea bargaining-- is
invalid, because by pleading guilty a
defendant waives dozens of statutory and
constitutional rights. See Bousley v.
United States, 523 U.S. 614 (1998);
United States v. Broce, 488 U.S. 563
(1989); Mabry v. Johnson, 467 U.S. 504,
508 (1984). See also United States v.
Mezzanatto, 513 U.S. 196 (1995)
(approving waivers of trial rights by a
defendant who pleaded not guilty). Yet
defendants are free to waive their
rights, to exchange them for other things
that they value more highly. They
exchange jury trials for lower sentences-
-and there is no reason why defendants
cannot do the same with rights to appeal.
An appeal requires the prosecutor’s
office to spend time researching the
record, writing a brief, and attending
oral argument. All of this time could be
devoted to other prosecutions; and a
promise that frees up time may induce a
prosecutor to offer concessions. A
defendant who values these concessions
will waive his rights in order to obtain
them. The process makes both society and
the defendant better off. To make a given
right ineligible for waiver would stifle
this process and imprison the defendant
in his privileges. Hare does not identify
any part of the criminal process that the
Supreme Court has declared off-limits to
waiver, and we see no reason why the
right to appeal should be the first. It
is not as if Hare were consenting to have
his sentence determined by majority vote
of a kindergarten class. Waiver of
appeal, rather, means that the final
decision will be made by one Article III
judge rather than three Article III
judges; all substantive entitlements are
unaffected.

  As for the contention that the waiver is
not supported by consideration because
the prosecutor did not promise to forego
appeal: The prosecutor dismissed two out
of three counts and promised to recommend
a lower sentence if certain conditions
were met. That’s plenty of consideration
for Hare’s promises--and contract law
does not require consideration to be
broken down clause-by-clause, with each
promise matched against a mutual and
"similar" promise by the other side.
United States v. Guevara, 941 F.2d 1299
(4th Cir. 1991), concluded that a
defendant’s waiver of appeal must be
matched against the prosecutor’s waiver
of appeal. Why the defendant’s waiver of
appeal can’t be matched against a lower
sentence the court did not explain.
Guevara dismissed an appeal by the
prosecutor because the defendant had
waived his right to appeal. This remedy
is problematic, for United States
Attorneys lack any right to control
appeals by the United States, through
plea agreements or otherwise; that right
belongs to the Solicitor General. 28
C.F.R. sec.0.20(b). But the choice of
remedy in Guevara is irrelevant once we
reject, as we do, the idea that each of
defendant’s promises in a plea agreement
must be supported by some particular (and
"similar") promise by the prosecutor, as
opposed to being supported by the overall
consideration given for the plea.

  Hare tells us that prosecutors refuse to
enter plea agreements without waivers of
appeal, and that as a result the
agreement is a "contract of adhesion."
The premise is false. This court resolves
many appeals by defendants who pleaded
guilty and did not waive their right to
appeal decisions affecting the sentence.
At oral argument the prosecutor said that
his office always seeks waivers as a
negotiating position, but that it makes
some plea agreements without waivers when
defendants refuse to consent. (Presumably
other terms are adjusted.) But what’s
wrong with a contract of adhesion anyway?
Many contracts have standard terms that
are not open to negotiation yet are
routinely enforced. See, e.g., Carnival
Cruise Lines, Inc. v. Shute, 499 U.S. 585
(1991) (enforcing a forum-selection
clause that was included among three
pages of terms attached to a cruise ship
ticket); Hill v. Gateway 2000, Inc., 105
F.3d 1147 (7th Cir. 1997) (enforcing an
arbitration clause in a form contract).
Someone who does not like the terms can
refuse to accept them--in the commercial
world by shopping with other vendors, in
the world of criminal prosecution by
spurning the offer and going to trial or
entering a blind plea of guilty. Hare
could have taken either course, but he
elected instead to negotiate for terms,
one of which was a waiver of appeal.

  Although Hare contends that the
prosecutor broke his promise to recommend
a lower sentence, the waiver prevents us
from considering that contention; Hare
agreed that arguments of this sort would
be conclusively resolved by the district
judge. (As we have mentioned, Hare never
presented this particular contention to
the district judge, so he wouldn’t have
much to complain about on appeal even if
the agreement had lacked a waiver.) There
is, nonetheless, one established breach:
Hare promised not to appeal, and he broke
that promise. Defendants can obtain
concessions in exchange for their
promises in plea agreements only if those
promises are credible. A defendant such
as Hare who promises not to appeal, and
then appeals anyway (requiring the United
States to invest in the appeal the
prosecutorial resources it sought to
conserve), injures other defendants who
plan to keep their promises, but can’t
distinguish themselves from those who
sign with their fingers crossed behind
their backs.

  Dismissing the appeal is an essential
but incomplete response, because the
prosecutorial resources are down the
drain, and dismissal does nothing to make
defendants’ promises credible in future
cases. But there is another remedy: If
the defendant does not keep his promises,
the prosecutor is not bound either. This
is established for broken agreements to
cooperate. A defendant who promises as
part of his plea agreement to provide
truthful information or testify in some
other case, and who does not carry
through, forfeits the benefits of the
agreement, and the United States is free
to reinstate dismissed charges and
continue the prosecution. See United
States v. Ataya, 864 F.2d 1324 (7th Cir.
1988); United States v. McCarthy, 445
F.2d 587, 591 (7th Cir. 1991) (dictum).
Cf. Ricketts v. Adamson, 483 U.S. 1
(1987). So, too, with a defendant who
promises not to appeal and then puts the
prosecutor through the appellate process
anyway. This remedy assists other
defendants by enabling them to make
believable promises not to appeal.

  This appeal is dismissed on the basis of
Hare’s waiver of his entitlement to
appeal. Hare’s failure to keep all of the
promises he made in the plea agreement
has the potential to relieve the United
States of its promises. As the United
States has not asked for this relief, we
give it 14 days to notify us whether it
wants to reinstate the two dismissed
charges.

So Ordered
