01-3999 U.S. v. Whitlow

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“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.”

“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.”

Vacated and Remanded.

Appeal from the United States District Court for the Central District of Illinois, Mihm, J., Easterbrook, J.