In the
United States Court of Appeals
For the Seventh Circuit

No. 01-3999

United States of America,

Plaintiff-Appellee,

v.

John R. Whitlow,

Defendant-Appellant.

Appeal from the United States District Court
for the Central District of Illinois.
No. 00-10029--Michael M. Mihm, Judge.

Submitted April 10, 2002--Decided April 25, 2002



  Before Posner, Easterbrook, and Diane P.
Wood, Circuit Judges.

  Easterbrook, Circuit Judge. In what has
become a common sequence, a defendant who
waived his appellate rights as part of a
plea bargain, and received a substantial
benefit in exchange, has failed to keep
his promise. After being indicted for 30
financial crimes, John Whitlow pleaded
guilty to four counts and the rest were
dismissed. The plea agreement provides
that "in exchange for the concessions
made by the United States" Whitlow waives
his rights to appeal and to seek
collateral relief under 28 U.S.C.
sec.2255. The benefits of the agreement
were substantial. Whitlow not only
obtained the dismissal of 26 counts but
also received a two-level reduction in
offense level for accepting
responsibility--a big break, given that
the district judge concluded that Whitlow
had obstructed justice, which blocks an
acceptance-of-responsibility reduction in
all but extraordinary cases. U.S.S.G.
sec.3E1.1 Application Note 4. Because of
the two-level reduction Whitlow’s
sentencing range was 97 to 121 months (he
was sentenced to 108 months); without the
reduction the range would have been 121
to 151 months, and extra counts of
conviction would have added sentencing
units, see sec.3D1.1, that could have
propelled the range higher still.
  To contest a decision as favorable as
this is to tempt fate, for we have held
that a defendant who breaks a promise not
to appeal entitles the prosecutor to walk
away as well. See United States v. Hare,
269 F.3d 859 (7th Cir. 2001). Prosecutors
may be disinclined to do this if we
affirm or dismiss the appeal despite the
waiver. But in this case Whitlow wants a
remand for resentencing--and in a
confession of error the prosecutor agrees
that he is entitled to it.

  Whitlow’s promise not to appeal has an
exception. The district judge concluded
that it is a close question whether the
2000 edition or the 2001 edition of the
Sentencing Guidelines is the right
version to apply. At the judge’s request,
the prosecutor agreed to modify the
waiver so that Whitlow could present this
issue for appellate resolution. Whitlow
abused this opportunity by filing an
appellate brief presenting eight issues
rather than the agreed single issue. He
contends, for example, that the judge
erred in calculating the amount of loss
for sentencing purposes, should not have
added two levels for obstructing justice,
and should have departed downward on the
ground that he is a compulsive gambler.
These arguments are blocked by the waiver
of appeal.

  In response to a motion to strike these
arguments from his brief, Whitlow insists
that a breach of the plea agreement by
the prosecutor cancels his waiver. One
problem with this argument is that
Whitlow presented to the district judge
his contention that the prosecutor broke
his promise by failing to recommend a
three-level reduction for acceptance of
responsibility. The judge found Whitlow’s
argument to be insubstantial. So it has
been authoritatively determined that the
government has kept its part of the
bargain. What Whitlow must be arguing,
then, is not that a breach allows appeal,
but that a claim of breach allows appeal.
That would make all waivers unenforceable
as a practical matter, for talk is cheap.
Other defendants who planned to keep
their promises, and sought to trade the
waiver for concessions on the
prosecutor’s part, could not do so, for
they could not distinguish themselves
from those who planned to appeal
notwithstanding their promises. To
facilitate bargains it is necessary to
enforce the whole deal with respect to
all defendants. A waiver of appeal does
not authorize a prosecutor to dishonor
his promises; instead it determines who
will be the judge of a claim that breach
has occurred. "Waiver of appeal . . .
means that the final decision will be
made by one Article III judge rather than
three Article III judges; all substantive
entitlements are unaffected." Hare, 269
F.3d at 861. A defendant who contended
that the prosecutor’s breach came after
judgment in the district court would have
an argument for a collateral attack
designed to enforce that aspect of the
promise; but here the asserted breach
preceded judgment.

  There is a second problem. A
prosecutor’s failure to keep one part of
a plea agreement usually leads to a
judicial order of specific performance;
it does not relieve the defendant of all
promises. Unless a prosecutor’s
transgression is so serious that it
entitles the defendant to cancel the
whole plea agreement, a waiver of appeal
must be enforced. We have held time and
again that a waiver of appeal stands or
falls with the rest of the bargain. See,
e.g., United States v. Jeffries, 265 F.3d
556 (7th Cir. 2001); United States v.
Behrman, 235 F.3d 1049 (7th Cir. 2000);
United States v. Wenger, 58 F.3d 280 (7th
Cir. 1995). Whitlow "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." Hare, 269 F.3d at 860-61. But
Whitlow did appeal and raise arguments
other than those excepted from the
waiver. Specific performance is a poor
remedy for this kind of breach by the
defendant; once an appeal is taken and a
brief filed, the prosecutor must respond,
and the resources sought to be conserved
by the waiver have been squandered. Money
damages are unavailable. The only
potentially effective remedy when a
defendant breaks a promise not to appeal
is to allow the prosecutor to withdraw
some concessions. That is why we
concluded in Hare that the defendant’s
appeal, in disregard of a promise not to
do so, exposes him to steps that can
increase the sentence.
  Let us turn briefly to the one issue
that Whitlow is entitled to raise.
Defendants must be sentenced under the
Guidelines manual in force when
sentencing occurs. See 18 U.S.C.
sec.3553(a)(4)(A); U.S.S.G. sec.1B1.11.
Whitlow’s sentencing began on October 31,
2001, the last day of the 2000 edition,
and concluded on November 1, 2001, the
first day of a new edition’s
effectiveness. The district judge
concluded that because the sentencing
hearing spanned two versions, it would be
appropriate to use whichever manual was
more favorable to the defendant. At the
time of sentencing, both the probation
office and the judge believed that the
2000 manual was more favorable to
Whitlow, and it was used in all
calculations. Whitlow argues on appeal--
and the prosecutor now concedes--that the
2001 manual is on balance more favorable.
We agree with the prosecutor that a
remand is appropriate so that Whitlow may
be resentenced under the 2001 manual. It
was in force on the date sentence was
pronounced and thus is the version
specified by Congress and the Sentencing
Commission.

  The sentence is vacated, and the case is
remanded for further proceedings
consistent with this opinion. Whitlow’s
breach of his promise not to appeal,
combined with the enhancement for
obstruction of justice, make it
exceptionally hard to justify when
calculating the new sentence any
reduction for acceptance of
responsibility. Hare affords the
prosecutor the opportunity to reinstate
any of the dismissed charges; the
prosecutor should alert Whitlow and the
district judge within 10 days of our
mandate if he desires to exercise that
option.




  DIANE P. WOOD, Circuit Judge, concurring.
I agree with the majority that John
Whitlow was entitled to take an appeal
concerning the question of which version
of the Sentencing Guidelines manual
applied to his case, and that (as the
government concedes) he is entitled to a
remand on this point. I write separately
because I do not subscribe to some of the
majority’s comments about waivers of the
right to appeal in plea bargains. The
majority trivializes such waivers by
stating that it is merely the
substitution of the views of one Article
III judge for three Article III judges
(or, more accurately, four, given the
fact that this court always weighs
seriously the views of the original trial
judge when a panel of three considers an
appeal). Most people would agree that
three or four heads can be better than
one, and there is no reason to suppose
that this truism has less force when it
comes to Article III judges than it does
in any other field of human endeavor. I
am also not convinced that these waivers
are capable of "buying" such great
benefits for defendants who plead guilty
as the majority assumes. In fact, the
scope of the issues that may properly be
appealed after a guilty plea is
exceedingly narrow, as the many cases in
which this court has followed United
States v. Broce, 488 U.S. 563 (1989),
make clear. See, e.g., Woodruff v. United
States, 131 F.3d 1238, 1241-42 (7th Cir.
1997) (no sec. 2255 challenges allowed on
grounds such as double jeopardy,
sentencing consequences, admissibility of
a confession, or the composition of the
grand jury, even if the law may have
changed after the plea); Young v. United
States, 124 F.3d 794, 797 (7th Cir. 1997)
(conviction based on plea "cannot be in
’error’ and therefore . . . is conclusive
on all factual and legal issues other
than a contention that the very
initiation of the proceedings violated
the Constitution."); United States v.
Makres, 937 F.2d 1282, 1285 (7th Cir.
1991). It is common for us to receive
Anders briefs in cases where a defendant
is trying to take an appeal from a guilty
plea; responsible counsel often conclude
after reviewing the Rule 11 colloquy that
led to the plea, the sentencing
proceedings, and other pertinent
materials, that no non-frivolous
arguments can be made. Prosecutors are
well aware of these facts when they
negotiate pleas. Thus, there is a risk
that appeal waivers do nothing but cut
off potentially meritorious arguments
either for direct appeal or for
collateral attacks under 28 U.S.C. sec.
2255.

  Having said that, I recognize that this
court and the other courts of appeals
have upheld appeal waivers when they are
properly and clearly included in plea
agreements. See, e.g., United States v.
Behrman, 235 F.3d 1049, 1051 (7th Cir.
2000) (voluntary waivers of appeal are
valid and enforceable); United States v.
Ogden, 102 F.3d 887, 888 (7th Cir. 1996)
(same); United States v. Wenger, 58 F.3d
280, 282 (7th Cir. 1995) (sentencing
appeal waivers are presumed valid where
the underlying plea is valid); United
States v. Teeter, 257 F.3d 14, 23 (1st
Cir. 2001) (collecting cases). On the
other hand, we have also taken care to
respect the limits on those waivers. See
Behrman, 235 F.3d at 1052 ("just as we
are willing to enforce waivers of appeal,
we enforce them only to the extent of the
agreement."); Bridgeman v. United States,
229 F.3d 589, 591-92 (7th Cir. 2000)
(discussing cases and limiting extent of
waiver to its explicit terms, despite the
government’s effort to suggest a broad
reading); United States v. Cupit, 169
F.3d 536, 539 (8th Cir. 1999) (language
of plea agreement waiving right to
challenge sentence did not specifically
show that parties agreed that restitution
award could not be reviewed); United
States v. Zink, 107 F.3d 716, 718 (9th
Cir. 1997) (waiver of right to challenge
sentence did not preclude appeal of
restitution order).

  Because of the latter line of cases, and
because everyone agrees that a defendant
may still attack the underlying
agreement, I would not speak so harshly
of Whitlow’s decision in this case to
take an appeal notwithstanding the
waiver, nor of his decision to present
more than the single Guidelines manual
issue to this court. Parties and lawyers
are scolded often enough for not
attempting to present issues to the court
and thus forfeiting or waiving their own
or their clients’ rights. The amount of
over-inclusiveness that occurred here
does not strike me as harmful,
particularly as the government has been
content to vindicate its interest through
a routine motion to strike. That should
be enough: I would therefore not invite
the government to re-open every other
part of the plea agreement just because
Whitlow structured his appeal as he did.
Furthermore, it is worth noting that we
have held that the essential terms of a
plea agreement are those addressing "the
nature of the charge to which the
defendant pleads, the factual basis for
the plea and the limits of the district
court’s sentencing authority." United
States v. Barnes, 83 F.3d 934, 938 (7th
Cir. 1996), citing Santobello v. New
York, 404 U.S. 257, 260-63 (1971). "The
agreement is complete when the parties
agree on the nature and extent of the
defendant’s culpability." Id. That
implies that a waiver of a right to
appeal is not among the essential terms
of the overall agreement. If plea
agreements are indeed to be interpreted
as contracts, United States v. Schilling,
142 F.3d 388, 394 (7th Cir. 1998),/1
Whitlow’s expansion of his otherwise
legitimate appeal ought not to constitute
a basis for the government to recant on
the entirety of the agreement from which
it too benefitted. It is enough to send
the case back to the district court to
address the issue that had merit and to
leave it at that.

FOOTNOTE

/1 For instance, if Whitlow alleged that there was
no "meeting of the minds" as to the non-appeal-
ability of his plea, I suspect that we would not
for that reason set aside the whole plea, because
the term in question was not an essential term of
the agreement. Barnes, 83 F.3d at 939.
