 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued November 14, 2011            Decided January 20, 2012

                        No. 11-3024

                UNITED STATES OF AMERICA,
                        APPELLEE

                              v.

                  MICHAEL P.S. SCANLON,
                       APPELLANT


        Appeal from the United States District Court
                for the District of Columbia
                   (No. 1:05-cr-00411-1)


    Stephen L. Braga argued the cause and filed the briefs for
appellant.

    Demetra Lambros, Attorney, U.S. Department of Justice,
argued the cause for appellee. With her on the brief was
Nathaniel B. Edmonds, Trial Attorney. Roy W. McLeese III,
Assistant U.S. Attorney, entered an appearance.

   Before: SENTELLE, Chief Judge, TATEL, Circuit Judge, and
EDWARDS, Senior Circuit Judge.

    Opinion for the Court filed by Chief Judge SENTELLE.
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     SENTELLE, Chief Judge: Michael Scanlon appeals the
denial by the district court of his “motion to amend or modify
his plea agreement.” Because courts are not authorized to order
modification or amendment of plea agreements, we affirm the
denial of his motion.

                          Background

     In 2005, the appellant, Michael P.S. Scanlon, pled guilty to
a one-count information charging a conspiracy with three
objects: bribery of federal officials; money-or-property mail and
wire fraud; and honest services mail and wire fraud in violation
of, inter alia, 18 U.S.C. § 1346. The information Scanlon pled
guilty to set forth the following scenario. A Washington
lobbyist whose clients included Native American Indian tribes
interested in operating gambling casinos persuaded some of
those clients to hire a firm established by Scanlon in
Washington, D.C., purportedly to provide grass roots work,
public relations services, and election campaign support.
Scanlon would charge these clients prices that incorporated huge
profit margins and then kick-back to the lobbyist fifty percent of
the firm’s net profits. Certain funds requested by Scanlon and
the lobbyist for specific client purposes were in fact being used
for their own personal benefit. Additionally, Scanlon and the
lobbyist would provide things of value to federal public officials
in exchange for the officials’ influence to benefit their clients.

     Scanlon’s plea was the result of a plea agreement between
Scanlon and the government and accepted by the district court,
all pursuant to Rule 11 of the Federal Rules of Criminal
Procedure. The plea agreement specifically stated that Scanlon
was pleading guilty to the crimes charged in the information,
including honest services mail and wire fraud in violation of 18
U.S.C. § 1346. The plea agreement set forth Scanlon’s offense
level under the United States Sentencing Guidelines; the
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government agreed, however, to seek a lower sentence if
Scanlon accepted responsibility for his actions and/or
cooperated with the government in its investigation. The plea
agreement also specified that restitution to the victims of
Scanlon’s crimes was mandatory, and that the estimated loss
was approximately 20 million dollars.

     Scanlon was not then sentenced but instead, for the next
five years, cooperated with the government in its investigation
of corruption on Capitol Hill. In 2010, still before sentencing,
Scanlon filed a motion in the district court “to modify or amend
his plea agreement” in light of the holding in Skilling v. United
States, 130 S. Ct. 2896 (2010), which concerned honest services
fraud in violation of 18 U.S.C. § 1346. Scanlon argued that
under the holding in Skilling the honest services fraud in
violation of 18 U.S.C. § 1346 to which he pled guilty could no
longer be maintained against him. In its opinion disposing of
Scanlon’s motion, the district court noted that if Scanlon’s
Skilling argument were correct, material consequences for
Scanlon’s sentencing and restitution would result. The district
court concluded, however, that Scanlon’s interpretation of
Skilling was erroneous and denied the motion. Scanlon was
subsequently sentenced to 20 months imprisonment and ordered
to pay approximately 20 million dollars in restitution. Scanlon
now appeals the district court’s denial of his motion to modify
or amend his plea agreement.

                          Discussion

     On appeal Scanlon renews the Skilling argument he made
below, contending that the final judgment of conviction and
restitution against him should be reversed and remanded for
redetermination without consideration of the § 1346 honest
services fraud portion of his plea. The government responds by
arguing, for the first time on appeal, that neither we nor the
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district court are authorized to modify or amend plea
agreements. We agree. Rule 11 of the Federal Rules of
Criminal Procedure strictly limits the role of the court in plea
agreements. First, the court is prohibited from participating in
plea agreement discussions. Fed. R. Crim. P. 11(c)(1).
Furthermore, after the plea agreement has been finalized
between the government and the defendant, the court, when
considering a plea agreement like the one at issue here, is
limited to accepting the plea, rejecting it, or deferring a decision.
Fed. R. Crim. P. 11(c)(3)(A). Modification of the agreement by
the court is not an option. As we have noted previously, “[t]he
district court may accept or reject [the] plea, but it may not
modify it.” United States v. Goodall, 236 F.3d 700, 703 (D.C.
Cir. 2001) (citation, quotations omitted). Most importantly for
our purposes here, changing of the agreement by the court after
acceptance of the plea is also not allowed. As the Fifth Circuit
has held, “once the court has accepted the [plea] agreement, it
may not subsequently reject or modify it.” McClure v. Ashcroft,
335 F.3d 404, 413 (5th Cir. 2003). Otherwise put, “[t]here is no
provision in the [Federal Rules of Criminal Procedure] allowing
a court to reject or modify an agreement once accepted.” United
States v. Ritsema, 89 F.3d 392, 399 (7th Cir. 1996). We agree.
The district court accepted Scanlon’s plea agreement, which
included pleading guilty to honest services fraud in violation of
18 U.S.C. § 1346. The district court is not authorized to modify
or amend Scanlon’s plea agreement.

     Scanlon argues otherwise, but he is unable to cite any case
in which a plea agreement was amended or modified by the
court at the unilateral request of one of the parties. He
nevertheless claims that the district court has the power to
modify or amend his plea agreement because striking the portion
of his plea to honest services fraud would affect only restitution,
and under the plea agreement it is within the district court
judge’s determination to set the amount of restitution. He
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further argues that since plea agreements are analogous to
contracts, if the district court had accepted his Skilling argument
then the government would have the option to opt out of the plea
agreement because a mutual misunderstanding in the making of
the plea agreement would have occurred. We hold no opinion
as to Scanlon’s Skilling argument, but even if we agreed with
Scanlon that the holding in Skilling materially affects the honest
services charges to which he pled guilty, the relief he seeks is
not available to him. Once again, we agree with the Seventh
Circuit. “If we rule that some provision of the plea agreement
is invalid, we must discard the entire agreement and require [the
defendant] and the government to begin their bargaining all over
again.” United States v. Barnes, 83 F.3d 934, 941 (7th Cir.
1996); see also United States v. Bernard, 373 F.3d 339, 345 n.7
(3rd Cir. 2004) (“If the provisions of a plea agreement are
accepted by a court, but later found to be invalid, the proper
remedy is . . . to allow the defendant to . . . either negotiate a
new agreement, or proceed to trial.”); United States v. Sandles,
80 F.3d 1145, 1148 (7th Cir. 1996) (“Where there is a mutual
misunderstanding as to the material terms of a contract, the
appropriate remedy is rescission, not unilateral modification.”).

     If Scanlon believes that certain terms of his plea agreement
should have been stricken because of Skilling, then one recourse
possibly available to him was to file a motion to withdraw his
plea. Rule 11 allows a defendant to withdraw a plea which, as
in Scanlon’s case, has been accepted by the court but before
sentencing, if “the defendant can show a fair and just reason for
requesting the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). If
Scanlon had filed a motion to withdraw on the basis of the
holding in Skilling and the district court had denied his motion,
then he could have appealed the denial and the Skilling issue
might be properly before us. But the issue comes before us by
his “motion to modify or amend his plea agreement.” We can
hardly hold that the district court erred by not granting relief the
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appellant had not sought. Our role is to affirm or reverse the
district court’s denial of the motion actually made, not one the
appellant, possibly for strategic reasons, never made. As the
district court had no authority to grant the relief the appellant
actually sought, the district court did not err in denying it.

                          Conclusion

   The district court’s denial of Scanlon’s motion to amend or
modify his plea agreement is affirmed.
