                                    In the

       United States Court of Appeals
                     For the Seventh Circuit
No. 13-1494

UNITED STATES OF AMERICA,
                                                         Plaintiff-Appellee,

                                      v.


ANDREW VELA,
                                                     Defendant-Appellant.

            Appeal from the United States District Court for the
              Northern District of Illinois, Eastern Division.
               No. 10 CR 1064 — Milton I. Shadur, Judge.


     ARGUED JANUARY 10, 2014 — DECIDED JANUARY 29, 2014


   Before FLAUM and EASTERBROOK, Circuit Judges, and
GRIESBACH, District Judge*.

   GRIESBACH, District Judge. This case presents the issue of
whether a defendant’s decision to waive his right to appeal his
conviction and sentence as part of a plea agreement with the
government is rendered involuntary by a subsequent change


*
    Of the Eastern District of Wisconsin, sitting by designation.
2                                                    No. 13-1494

in the law. We hold that it is not and therefore dismiss the
appeal.
    Beginning in January 2010, Andrew Vela entered into a
conspiracy to distribute cocaine in the Chicago area. Shortly
thereafter, Vela rented a house in Nottingham Park for the
purpose of setting up a marijuana growing operation. On June
30, 2010, law enforcement executed a search warrant at the
grow house and recovered 101 marijuana plants. One of Vela’s
co-conspirators in the grow operation was located at the house
with a loaded handgun.
    Vela was charged on September 14, 2010, by criminal
complaint with conspiracy to manufacture 100 or more
marijuana plants and arrested at his home in Berwyn, Illinois
the following day. At the time of his arrest, law enforcement
recovered 112 grams of cocaine, together with a loaded Glock
semi-automatic pistol, from Vela’s bedroom dresser and
approximately 390 grams of marijuana from a kitchen cabinet.
A grand jury later returned two separate indictments against
Vela. The first, based on the search of his home, charged him
with possession with intent to distribute cocaine and marijuana
in violation of 21 U.S.C. § 841(a), and possession of a firearm in
furtherance of a drug trafficking offense, in violation of 18
U.S.C. § 924(c)(1)(A). In the second indictment, based on the
investigation surrounding the grow house, Vela was charged
with conspiracy to manufacture and possess with intent to
distribute 100 or more marijuana plants, in violation of 21
U.S.C. § 846, and possession with intent to distribute 100 or
more marijuana plants, in violation of 21 U.S.C. § 841(a)(1).
No. 13-1494                                                   3

   On August 20, 2012, Vela entered guilty pleas to both
counts of the first indictment pursuant to a written plea
agreement with the government. In exchange for his pleas, the
government agreed to dismiss the charges in the second
indictment. Vela agreed, however, that his role in the mari-
juana grow house conspiracy would be considered relevant
conduct for sentencing purposes.
    The plea agreement included a discussion of the anticipated
advisory sentencing range under the United States Sentencing
Guidelines (Guidelines) and called for a two-level enhance-
ment of the offense severity score for maintenance of premises
for manufacturing controlled substances pursuant to
§ 2D1.1(b)(12) of the 2011 Guidelines Manual. The enhance-
ment for maintaining a drug distribution premises did not
become effective until November 1, 2010, some four months
after the search of the grow house. USSG Appx C Supplement
at 374, Amend 748. The parties nevertheless agreed, consistent
with this court’s decision in United States v. Demaree, 459 F.3d
791 (7th Cir. 2006), that the more recent version of the Guide-
lines would apply.
    The agreement also contained an appeal waiver in which
Vela acknowledged his right to appeal his conviction and
sentence and expressly agreed to waive such right in return for
the concessions made by the government in the agreement. The
waiver was not absolute, however. By its terms, it did not
apply:
     to a claim of involuntariness, or ineffective assis-
     tance of counsel, which relates directly to this
     waiver or its negotiation, nor does it prohibit defen-
4                                                   No. 13-1494

     dant from seeking a reduction of sentence based
     directly on a change in the law that is applicable to
     defendant and that, prior to the filing of defendant’s
     request for relief, has been expressly made retroac-
     tive by an Act of Congress, the Supreme Court, or
     the United States Sentencing Commission.
    After a thorough plea colloquy in compliance with Rule 11
of the Federal Rules of Criminal Procedure, the district court
accepted Vela’s plea, finding that Vela was competent to enter
the plea and did so knowingly and voluntarily.
    Vela was sentenced on February 8, 2013. The district court,
as the parties had agreed and also consistent with this court’s
decision in Demaree, calculated the advisory sentencing range
using the Guidelines in effect at the time of sentencing, rather
than those in effect at the time of the offense, even though it
resulted in a higher range. The court calculated the advisory
range to be 97 to 121 months. Without the two-level enhance-
ment for maintaining a premises for manufacturing a con-
trolled substance, the sentence range would have been 78 to 97
months. Regardless of the Guidelines used, Vela faced a
statutory mandatory minimum sentence of five years on the
firearm offense that had to run consecutive to any other term
of imprisonment. 18 U.S.C. § 3561. Ultimately, the district court
sentenced Vela to 138 months: 78 months for possession with
intent to distribute—a downward variance from the low-end
advisory sentence of 97 months—and a consecutive 60-month
sentence for possession of a firearm in furtherance of a drug
trafficking crime. Vela filed a timely appeal.
No. 13-1494                                                   5

    Four months after sentencing, while Vela’s appeal was still
pending, the United States Supreme Court decided Peugh v.
United States, — U.S. —, 133 S. Ct. 2072 (2013). In Peugh, the
Court held that application of an amended sentencing Guide-
lines provision that increases a defendant’s recommended
sentence from what it would have been at the time of the
offense violates the Ex Post Facto Clause. 133 S. Ct. at 2088.
Based on Peugh, Vela requests that we vacate his sentence and
remand his case for resentencing using the earlier Guidelines.
The government argues Vela’s appeal should be dismissed
because he waived his right to appeal.
    Vela offers two arguments why the appeal waiver should
not be enforced. He primarily argues that his plea was not
knowing and voluntary because he was unaware at the time he
entered it that his plea agreement called for a violation of the
Ex Post Facto Clause. Alternatively, Vela contends that his
appeal falls within the exception to the appeal waiver that
allows him to seek “a reduction of sentence based directly on
a change in the law that is applicable to defendant and that,
prior the filing of defendant's request for relief, has been
expressly made retroactive by an Act of Congress, the Supreme
Court, or the United States Sentencing Commission.” Vela
argues that Peugh represents such a change in the law, and as
a result his appeal waiver is not a bar to his challenge to his
sentence. We find neither argument convincing.
    Vela’s argument that his plea was not knowing or volun-
tary because he did not realize that he was agreeing to waive
a constitutional right was rejected by the Supreme Court more
than forty years ago in Brady v. United States, 397 U.S. 742
(1970). In Brady, the defendant pleaded guilty to kidnaping in
6                                                    No. 13-1494

violation of 18 U.S.C. § 1201(a), which at the time allowed
imposition of the death penalty upon the recommendation of
the jury. 397 U.S. at 743. The effect of placing such authority in
the hands of the jury was to cause defendants so charged to
either plead guilty or at least waive their right to a jury trial.
Because the trial judge in his case made clear he would not try
the case without a jury, Brady pleaded guilty to avoid the risk
of the death penalty and was sentenced to 50 years imprison-
ment, later reduced to 30. This was in 1959. In 1968 the Su-
preme Court struck down the death penalty provision of the
statute, holding that it “needlessly penalizes the assertion of a
constitutional right.” United States v. Jackson, 390 U.S. 570, 583
(1968). Based on Jackson, Brady sought relief under 28 U.S.C. §
2255, arguing that his plea was not voluntary, knowing, and
intelligent because the unconstitutional portion of § 1201(a)
coerced his plea and he was unaware at the time of his plea
that the statute was unconstitutional. Id. at 744–45. The Court
rejected Brady’s arguments in language that is equally applica-
ble here:
     A defendant is not entitled to withdraw his plea
     merely because he discovers long after the plea has
     been accepted that his calculus misapprehended the
     quality of the State's case or the likely penalties
     attached to alternative courses of action … . The fact
     that Brady did not anticipate United States v. Jackson,
     supra, does not impugn the truth or reliability of his
     plea. We find no requirement in the Constitution
     that a defendant must be permitted to disown his
     solemn admissions in open court that he committed
     the act with which he is charged simply because it
No. 13-1494                                                    7

     later develops that the State would have had a
     weaker case than the defendant had thought or that
     the maximum penalty then assumed applicable has
     been held inapplicable in subsequent judicial deci-
     sions.
Id. at 757.
    More recently, in United States v. Broce the Court reached a
similar result in rejecting the challenge by a construction
company and its owner to their convictions on pleas of guilty
to two separate counts of conspiracy to rig bids and suppress
competition in violation of the Sherman Act, 26 Stat. 209, as
amended, 15 U.S.C. § 1. 488 U.S. 563 (1989). Relying on a later
case involving a different construction company where the
court had held that the separate counts were merely smaller
parts of an overarching conspiracy, the defendants each sought
to set aside one of their convictions on the ground that convic-
tion on both counts subjected them to double jeopardy. In
rejecting the defendants’ challenge, the Court noted that
instead of entering their guilty pleas, the defendants had the
opportunity to challenge the theory of the indictments and
attempt to show the existence of only one conspiracy in a
trial-type proceeding. Id. at 571. “They chose not to,” the Court
held, “and hence relinquished that entitlement.” Id. And while
the defendants may have made a strategic miscalculation, the
Court noted that “[o]ur precedents demonstrate … that such
grounds do not justify setting aside an otherwise valid guilty
plea.” Id.
  Likewise, in McMann v. Richardson, 397 U.S. 759 (1970), the
Court held that a counseled defendant may not make a
8                                                     No. 13-1494

collateral attack on a guilty plea on the allegation that he
misjudged the admissibility of his confession. “Waiving trial
entails the inherent risk that the good-faith evaluations of a
reasonably competent attorney will turn out to be mistaken
either as to the facts or as to what a court's judgment might be
on given facts.” Id. at 770.
   Stated simply, “[the Court’s] decisions have not suggested
that conscious waiver is necessary with respect to each
potential defense relinquished by a plea of guilty.” Broce, 488
U.S. at 573. It therefore follows that the fact that Vela did not
anticipate that the Supreme Court would overrule Demaree
does not render his decision to plead guilty involuntary. While
Vela may in hindsight regret his decision to waive his appeal
rights as part of his plea agreement, that is not enough to
permit withdrawal of his plea.
     Vela’s alternative argument fares no better. The plea
agreement provided that the waiver did not “prohibit defen-
dant from seeking a reduction of sentence based directly on a
change in the law that is applicable to defendant and that, prior
to the filing of defendant’s request for relief, has been expressly
made retroactive by an Act of Congress, the Supreme Court, or
the United States Sentencing Commission.” Vela argues that
Peugh represents the kind of change in the law envisioned by
the exception and the retroactivity of Peugh need not be
examined because the case was decided while this appeal was
still pending.
   “Disputes over plea agreements are usefully viewed
through the lens of contract law.” United States v. Bownes, 405
F.3d 634, 636 (7th Cir. 2005) (collecting cases). Vela’s position
No. 13-1494                                                      9

essentially requires us to ignore the clear and unambiguous
language of the plea agreement. To satisfy the exception to the
waiver, the change in law must have “been expressly made
retroactive by an Act of Congress, the Supreme Court, or the
United States Sentencing Commission.” While Peugh repre-
sents a change in the law, at least in this circuit, the Supreme
Court did not make the change expressly retroactive in that
case. In fact, Peugh concluded that “failing to calculate the
correct Guidelines range constitutes procedural error,” 133 S.
Ct. 2083, the kind which are generally not applied retroac-
tively. Schriro v. Summerlin, 542 U.S. 348, 351–52 (2004); see also
Hawkins v. United States, 724 F.3d 915, 917 (7th Cir. 2013)
(concluding that Peugh does not apply retroactively for
purposes of collateral review for the same reasons). Thus, by
its plain terms, the exception does not apply.
   In sum, Vela voluntarily and knowingly entered into a plea
agreement that included an appeal waiver, and his appeal does
not fall within any of the bargained-for exceptions to that
waiver. The waiver must therefore be enforced. Accordingly,
Vela’s appeal is DISMISSED.
