United States v. John R. Whitlow

Citations: 287 F.3d 638; 2002 U.S. App. LEXIS 7539; 2002 WL 725428Docket: 01-3999

Court: Court of Appeals for the Seventh Circuit; April 25, 2002; Federal Appellate Court

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John R. Whitlow, having pleaded guilty to four counts of financial crimes as part of a plea agreement that waived his right to appeal, attempted to contest his sentencing after benefiting from a significant reduction in offense level. Initially indicted on 30 counts, he received a two-level reduction for acceptance of responsibility, despite the judge's conclusion that he had obstructed justice, which typically precludes such a reduction. This resulted in a sentencing range of 97 to 121 months, with Whitlow ultimately sentenced to 108 months.

Though Whitlow's plea agreement included a waiver of appeal, he sought to challenge his sentence, claiming the district judge's error in applying the correct version of the Sentencing Guidelines and raising various other issues. However, the waiver of appeal barred these arguments. The prosecutor acknowledged that Whitlow was entitled to a remand for resentencing on the agreed-upon issue regarding the Sentencing Guidelines but objected to the additional issues raised by Whitlow.

Whitlow argued that any breach of the plea agreement by the prosecutor would nullify his waiver. However, the district judge ruled that the prosecutor had upheld their end of the bargain, deeming Whitlow's claims insubstantial. Consequently, Whitlow's interpretation that a claim of breach allows for an appeal contradicts the principle that waivers should be enforceable, potentially undermining plea agreements for all defendants.

Enforcement of plea agreements requires upholding the entire deal with all defendants. A waiver of appeal allows a single Article III judge to decide claims of breach but does not absolve the prosecutor of their commitments. A prosecutor's breach typically leads to specific performance rather than invalidating the entire agreement, unless the breach is so severe that it justifies cancellation. A waiver of appeal is linked to the overall agreement, and a defendant cannot selectively retain benefits while discarding obligations. 

In this case, Whitlow did not seek to overturn his plea but wanted to retain the benefits without facing the consequences of his breach. His appeal raised issues not exempted from the waiver, but money damages are not an option when a defendant violates a no-appeal promise. The prosecutor may withdraw concessions in response to such a breach, which could lead to an increased sentence.

Regarding sentencing, defendants must be sentenced according to the Guidelines in effect at the time of sentencing. Whitlow’s sentencing spanned two editions of the Guidelines. The district court used the 2000 manual, believed to be more favorable at the time, but it has been agreed that the 2001 manual is more advantageous. Therefore, Whitlow's sentence is vacated and remanded for resentencing under the 2001 manual. The prosecutor retains the option to reinstate dismissed charges, which should be communicated to Whitlow and the district judge within ten days of the mandate.

John Whitlow is entitled to appeal regarding which version of the Sentencing Guidelines applies to his case, and a remand is warranted on this issue. The author disagrees with some majority opinions on waivers of the right to appeal in plea agreements, arguing that the majority downplays the significance of judicial perspectives and the potential for more comprehensive judicial review. The author questions the substantial benefits that appeal waivers provide to defendants, noting that the scope for appealing after a guilty plea is extremely limited, as established in precedents like *United States v. Broce*. Many cases emphasize that issues such as double jeopardy, sentencing consequences, and the admissibility of confessions cannot be raised post-plea, even if the law changes. Often, attorneys find no non-frivolous arguments to present in appeals following guilty pleas, which may lead to waivers preventing potentially valid challenges.

Although the author acknowledges that courts uphold appeal waivers when they are clear and properly included in plea agreements, they emphasize that such waivers must be enforced only within their explicit terms. Several cited cases reinforce that while voluntary waivers are valid, they should not extend beyond what was expressly agreed upon in the plea agreement. Courts have limited the scope of these waivers to ensure that defendants retain certain rights, particularly regarding specific aspects like restitution orders.

Whitlow's decision to appeal despite the waiver is not overly criticized, as it is common for defendants to challenge underlying agreements. The extent of issues raised in the appeal is deemed acceptable, especially since the government chose to address its interests through a straightforward motion to strike. It is emphasized that the government should not be allowed to reopen all aspects of the plea agreement merely due to Whitlow's approach to his appeal. The essential terms of a plea agreement are defined as relating to the charge, the factual basis for the plea, and sentencing authority, meaning that a waiver of appeal rights is not fundamental to the agreement. Furthermore, interpreting plea agreements as contracts suggests that Whitlow's broader appeal should not invalidate the entire agreement. The case should be remanded to the district court to resolve the meritorious issue without disturbing the overall plea arrangement. Additionally, if Whitlow claimed a lack of consensus regarding the non-appealability of the plea, it is unlikely that the entire plea would be annulled, as this waiver is not considered essential.