                             In the

United States Court of Appeals
              For the Seventh Circuit

No. 08-2273

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

M ARCUS A. B ROWN,
                                               Defendant-Appellant.


            Appeal from the United States District Court
       for the Northern District of Illinois, Eastern Division.
       No. 1:06-CR-324-15—Samuel Der-Yeghiayan, Judge.



      A RGUED F EBRUARY 18, 2009—D ECIDED JULY 8, 2009




 Before R OVNER, E VANS, and T INDER, Circuit Judges.
  T INDER, Circuit Judge. After being charged with several
counts of drug-related offenses, Marcus Brown entered
into a plea agreement with the government. Under the
agreement, if Brown pleaded guilty to one conspiracy
count and fully cooperated, the government would move
to dismiss the remaining counts and reduce Brown’s
sentence. The district court accepted Brown’s guilty
plea and sentenced him in accordance with the terms of
2                                              No. 08-2273

the plea agreement. Nonetheless, Brown now argues that
the record is ambiguous as to whether the district court
accepted the agreement. Brown requests a remand to
determine if the court actually intended to reject the
agreement, in which case Brown is entitled to withdraw
his guilty plea. We conclude that the district court’s
acceptance of Brown’s plea agreement was unambiguous
and, accordingly, dismiss Brown’s appeal.


                     I. Background
  Between 2003 and 2006, Brown participated in a drug
distribution operation based out of a Chicago housing
complex. The government obtained an indictment
against Brown and thirty-nine other individuals in-
volved in the operation, particularly charging Brown
with conspiracy to possess with intent to distribute more
than 5 kilograms of cocaine, 50 grams of crack cocaine, and
1 kilogram of heroin, in violation of 21 U.S.C. § 846, and
possession with intent to distribute 3.2 grams of crack
cocaine, in violation of 21 U.S.C. § 841(a)(1). The indict-
ment also contained a forfeiture allegation against all
property derived from or used to facilitate the drug
offenses. In three other cases that are not the subject of
this appeal, the government charged Brown with addi-
tional crack cocaine distribution offenses.
  Brown and the government entered into a plea agree-
ment requiring Brown to plead guilty to the conspiracy
count, resulting in an anticipated sentencing range of 292-
365 months under the Sentencing Guidelines. In ex-
change, the government would move to dismiss the
No. 08-2273                                               3

possession count and forfeiture allegation in this case, as
well as all counts against Brown in the other three cases.
In addition, if Brown fully cooperated by providing
complete and truthful information in the other cases, the
government would move under U.S.S.G. § 5K1.1 for a
sentence at 66% of the minimum Guidelines range. If the
government determined that Brown had not fully cooper-
ated and declined to move for a § 5K1.1 reduction, Brown
could not withdraw his guilty plea. Finally, the plea
agreement required Brown to waive his right to appeal
his conviction or sentence.
  The district court held a hearing to accept Brown’s guilty
plea to the conspiracy count. The court reviewed and
explained the terms of the plea agreement, which Brown
indicated that he understood. The court also told the
parties that it would order the Probation Department to
prepare a Presentence Investigation Report (“PSR”) to
assist the court in sentencing. The court would hear
any objections to the PSR’s sentencing calculations
before imposing a final sentence. At no point during
the hearing did the court explicitly accept or reject the
plea agreement.
  Brown later decided that he wanted nothing to do with
the plea agreement. He filed a pro se motion to with-
draw his guilty plea on the ground that his appointed
counsel had misrepresented the terms of the plea agree-
ment and coerced him into pleading guilty. The court
denied the motion without prejudice and appointed
new counsel. Through his new counsel, Brown filed a
second motion to withdraw his plea, arguing that he
4                                               No. 08-2273

entered the plea before receiving a final copy of the
plea agreement describing the full offense conduct attrib-
uted to him. The district court rejected this argument,
noting that Brown had stated under oath at the plea
hearing that he had read and understood the final
plea agreement.
  At the sentencing hearing, the district court adopted the
PSR’s sentencing calculations, which specified the same
292-365 month Guidelines range anticipated by the plea
agreement. The court rejected Brown’s objection to the
quantity of crack cocaine attributed to him in the
PSR, noting that Brown had admitted under oath to an
identical quantity specified in the plea agreement. After
the government advised the court that it was not
moving under § 5K1.1 for a below-Guidelines sentence
because Brown had not fully cooperated, the court ac-
knowledged that the plea agreement gave the govern-
ment that right. The court accordingly imposed a Guide-
lines sentence of 325 months on the conspiracy count.
The court also recognized that the plea agreement con-
tained a waiver of Brown’s right to appeal. Nonethe-
less, the court chose to state for the record “that the
defendant has the right to appeal,” leaving it to the ap-
pellate court to “determine whether the defendant has
waived his right or not waived his right [to appeal].” After
the sentencing hearing, the court, consistent with the
plea agreement, dismissed the remaining counts in the
case before it. The government also moved to dismiss
the pending indictments against Brown in the other
three cases.
No. 08-2273                                                 5

  Brown appeals on the ground that the district court
failed to comply with Fed. R. Crim. P. 11(c) because it
never accepted or rejected the plea agreement. More
precisely, Brown argues that the record is ambiguous as to
whether the court intended to accept the agreement and
requests a remand for clarification from the court.


                       II. Analysis
  Fed. R. Crim. P. 11(c) governs the district court’s consid-
eration of plea agreements. Under Fed. R. Crim. P. 11(h),
Rule 11 violations are generally subject to harmless error
review, requiring the government to prove that the error
did not affect the defendant’s substantial rights. See
United States v. Vonn, 535 U.S. 55, 58 (2002). However,
since Brown never sought clarification regarding the
district court’s acceptance of the plea agreement, Brown
has the burden of showing plain error. See United States v.
Arenal, 500 F.3d 634, 637 (7th Cir. 2007) (citing Vonn, 535
U.S. at 59). To prevail on plain error review, the defendant
must show that “(1) an error has occurred, (2) it was
‘plain,’ (3) it affected a substantial right of the defendant,
and (4) it seriously affected the fairness, integrity, or
public reputation of the judicial proceedings.” United
States v. Nitch, 477 F.3d 933, 935 (7th Cir. 2007) (quotation
omitted).
  Under Fed. R. Crim. P. 11(c)(3)(A), for plea agreements
such as Brown’s that require the government to move to
dismiss other charges, the district court “may accept
the agreement, reject it, or defer a decision until the
court has reviewed the presentence report.” If the court
6                                               No. 08-2273

accepts the agreement, it must inform the defendant that
“the agreed disposition will be included in the judg-
ment.” Fed. R. Crim. P. 11(c)(4). If the court rejects the
agreement, it must inform the parties in open court and
give the defendant an opportunity to withdraw the
guilty plea. Fed. R. Crim. P. 11(c)(5).
  Brown argues that the district court plainly erred by
failing to either accept or reject the plea agreement, as
required by Rule 11(c). However, our review of the
record indicates that the court accepted the agreement.
At the plea hearing, the court stated that it would
examine the PSR’s Guidelines calculations before
imposing a final sentence, suggesting that the court
exercised its option under Rule 11 to defer acceptance
“until the court has reviewed the presentence report.” Fed.
R. Crim. P. 11(c)(3)(A). Thereafter, every aspect of the
court’s disposition of Brown’s case was consistent with
an acceptance of the plea agreement. At the sentencing
hearing, the court recalled that Brown had pleaded
guilty to the conspiracy count “pursuant to a written
plea agreement.” The court rejected Brown’s objection
to the quantity of crack cocaine attributed to him in the
PSR, noting that Brown had admitted under oath to an
identical quantity specified in the plea agreement. The
court would not have bound Brown to facts described in
a plea agreement that the court intended to reject.
  After the government declined to move for a § 5K1.1
reduction, the court stated that it would proceed “under
the plea agreement” to sentence Brown in accordance
with the sentencing factors of 18 U.S.C. § 3553. Finally, the
No. 08-2273                                                7

court actually implemented the terms of the plea agree-
ment by dismissing the remaining counts in the case. The
government, also consistent with the plea agreement,
moved to dismiss the pending counts against Brown in
the other three cases. Because all of these acts were
fully consistent with the terms of the plea agreement, the
record unambiguously establishes that the district court
accepted the agreement.
  To try to show that the district court’s acceptance of
the plea agreement was ambiguous, Brown notes that
the court never explicitly stated that it was accepting
or rejecting the agreement. Brown also highlights the
court’s statement at the sentencing hearing that “the
defendant has the right to appeal,” even though the
agreement required Brown to waive the right to ap-
peal. According to Brown, this statement expresses doubt
about the validity of the appellate waiver and suggests a
rejection of the plea agreement.
  As to the appellate waiver, although the district court
may have expressed doubt about the waiver’s validity,
we disagree with Brown that this statement suggests
that the court was rejecting the plea agreement. We
routinely hear challenges to an appellate waiver on the
ground that the defendant did not agree to the waiver
knowingly and voluntarily. E.g., United States v. Linder,
530 F.3d 556, 561 (7th Cir. 2008); United States v. Blinn,
490 F.3d 586, 588 (7th Cir. 2007); United States v. Sura, 511
F.3d 654, 655-56 (7th Cir. 2007). Far from a rejection of
the plea agreement, the district court’s reference to
Brown’s right to appeal simply recognized that Brown
8                                                No. 08-2273

might challenge the voluntariness of the agreement that
the court was enforcing.
  As to the court’s failure to explicitly state that it was
accepting the plea agreement, that omission does not
overcome the court’s other acts that uniformly point to
acceptance. We addressed a similar situation in United
States v. Ray, 828 F.2d 399, 415-16 (7th Cir. 1987), in
which the district court never stated that it was
accepting the plea agreement. We nonetheless found
an acceptance because the court sentenced the defendant
in accordance with the agreement’s terms. Id. at 416. In
particular, the district court in Ray, like the district court
in this case, accepted the government’s motion to
dismiss other pending counts as required by the plea
agreement. Id. In fact, the court’s intention in Ray to
accept the agreement was so apparent that we dis-
regarded the court’s statement that the agreement was
“not accepted.” Id. Given all of the surrounding circum-
stances indicating an acceptance, we concluded that
this statement must have been a “mistake or clerical
error.” Id.
  As in Ray, the district court’s sentencing of Brown was
fully consistent with the terms of the plea agreement. The
court even chose a sentence within a Guidelines range
identical to the range anticipated by the plea agreement.
Cf. United States v. Smith, 500 F.3d 1206, 1213 & n.3 (10th
Cir. 2007) (concluding that the imposition of an upward
adjustment to the defendant’s Guidelines range did not
amount to a rejection of the plea agreement, since the
agreement did not address the specific adjustment at
No. 08-2273                                              9

issue). Under these circumstances, remanding the case
as Brown requests for clarification of the district court’s
intention would place “ritual” over “reality.” Ray, 828
F.2d at 404 (quotation omitted).
  We also note that, even if the record were ambiguous
as to whether the district court accepted Brown’s plea
agreement, some authority exists for resolving that ambi-
guity in favor of acceptance. In United States v. Skidmore,
998 F.2d 372, 374 (6th Cir. 1993), the district court
accepted the defendants’ guilty pleas pursuant to a plea
agreement but never stated whether it was accepting
the agreement. In subsequent sentencing proceedings, the
district court refused to enforce a provision of the agree-
ment requiring the forfeiture of the defendants’ property
to the United States. The Sixth Circuit reversed and
enforced the forfeiture provision as if the district court
had accepted the agreement. Id. at 375. “[T]he district
court’s failure to indicate the status of the plea agree-
ment, within the requirements of [Rule 11(c)(3)], at the
time the court accepts the guilty pleas operates as an
acceptance of the agreement.” Id. (citation omitted); see
also Smith, 500 F.3d at 1213 n.3 (citing Skidmore to find a
“constructive acceptance” of the plea agreement).
  We acknowledge that the better practice under Rule 11(c)
would be for district courts to explicitly indicate the
status of plea agreements. A defendant like Brown who
trades cooperation for government leniency finds
himself in an uncertain bargaining position. Armed with
significant resources and prosecutorial charging discre-
tion, the government may demand highly favorable terms
10                                                  No. 08-2273

in its plea agreement. Perhaps the most favorable of
these is the unilateral authority to determine whether
the defendant performed under the agreement by fully
cooperating, an authority subject only to certain constitu-
tional constraints. See United States v. Wilson, 390 F.3d
1003, 1009-10 (7th Cir. 2004) (concluding that the gov-
ernment’s refusal to move for a substantial assistance
reduction lacked a rational basis); United States v. Lezine,
166 F.3d 895, 901-03 (7th Cir. 1999) (recognizing the defen-
dant’s due process right to a hearing on whether he
breached the plea agreement by failing to cooperate). As
if the uncertainty of placing this authority in one’s ad-
versary weren’t enough, the defendant must also defer
to the authority of the district court, which retains the
right to reject the plea agreement. Fed. R. Crim.
P. 11(c)(3), (5).
  Here, the district court would have done well to mini-
mize this uncertainty in plea bargaining by sticking as
close as possible to the virtual “checklist” that Rule 11
provides. Consistent with the requirements of Rule 11(c),
the court might have explicitly stated at the plea
hearing that it was deferring acceptance pending the PSR
and, at the sentencing hearing, that it was accepting the
plea agreement. See Fed. R. Crim. P. 11(c)(3)(A). But since
the Rule does not require such explicit statements,1 we


1
  Other sentencing provisions overlooked by the district court
do require explicit statements. Fed. R. Crim. P. 11(c)(4) provides
that, upon accepting a plea agreement, the district court
                                                    (continued...)
No. 08-2273                                                  11

cannot say that the court plainly erred by failing to
specify that it was accepting Brown’s plea agreement.
Brown could have “dispelled any uncertainty” by simply
asking the court for clarification. Arenal, 500 F.3d at 639.
We also suggest that the government could have
sought assurances that the court was accepting the plea
agreement, thereby preventing Brown from trying to
withdraw his guilty plea on the theory that the court
rejected the agreement.




1
  (...continued)
“must inform the defendant” that the agreed dismissal of other
charges “will be included in the judgment.” U.S.S.G. § 6B1.2(a)
further requires that the court state “on the record” that “the
remaining charges adequately reflect the seriousness of the
actual offense behavior and that accepting the agreement
will not undermine the statutory purposes of sentencing or
the sentencing guidelines.” Although Brown highlights the
district court’s failure to comply with these provisions, he
does not argue that these errors warrant reversal in and of
themselves. Rather, he cites these errors in support of his
argument that the district court’s acceptance of the plea agree-
ment was ambiguous, an argument that we reject based on the
analysis in this opinion. Brown would also have a difficult time
showing that the district court’s failure to make the statements
required by Rule 11(c)(4) and U.S.S.G. § 6B1.2(a) resulted
in prejudice, since the court actually implemented the terms of
the plea agreement. See Ray, 828 F.2d at 417 (finding a
Rule 11(c)(4) error harmless).
12                                            No. 08-2273

                    III. Conclusion
  Because we find that the district court accepted Brown’s
plea agreement, we D ISMISS Brown’s appeal pursuant to
the appellate waiver contained in the agreement.




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