Plea Agreement

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7^TH Circuit Court of Appeals

Case Name: United States of America v. Vernado Malone

Case No.: 15-2400

Officials: WOOD, Chief Judge, and KANNE and SYKES, Circuit Judges.

Focus: Plea Agreement

Plea agreement explicitly laid out a waiver of appeal, so this appeal is dismissed accordingly.

“The absence of express language of stipulation as to the number of victims is telling in light of the fact that there is express language of stipulation in other parts of the plea agreement. The government and the defendant “stipulate[d] that the amount of the loss in this matter is $120,000,” and the government “agree[d]” to recommend a 2‐level reduction for acceptance of responsibility and to dismiss count two. That language stands in stark contrast to the factual basis of the plea agreement, which contained no language of stipulation or agreement. See United States v. Schilling, 142 F.3d 388, 397–98 (7th Cir. 1998) (contrasting the defendant’s admissions in the factual basis with sections where the government “agree[d]” to make certain sentencing recommendations). Instead, given the “one‐sided nature of the acknowledgment of criminal conduct” and the district court’s duty to determine, among other things, any victim‐related adjustments after input from the government, it is clear that the factual basis in the plea is not a stipulation to the number of victims. See O’Doherty, 643 F.3d at 217–18 (finding that factual basis where the defendant “acknowledge[d]” that the government could prove tax losses of $425,766 did not pre‐ vent the government from arguing at sentencing that there was a greater loss).”

Appeal Dismissed

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.