United States Court of Appeals For the Seventh Circuit
Criminal Procedure — breach of plea agreement — waiver
Where a defendant agreed to proceed with sentencing, despite a possible breach of the plea agreement, the defendant waives the objection.
“Here, Gaona waived her ability to argue that the Government breached the plea agreement. At the conclusion of the April 20 hearing, the district court gave Gaona three days to consider how to proceed after hearing the Government’s characterization of her conduct and its clarification comments. Gaona unequivocally said ‘Yes’ when asked on April 23 whether the district court should continue with the sentencing. Defense counsel did not move to withdraw Gaona’s plea or ask for another judge to sentence Gaona. The district court sentenced Gaona in accordance with her wishes: to be sentenced on that day, by that particular judge. A party cannot later challenge exactly what it asked the court to do. See Wesley, 422 F.3d at 520-21. The situation before us amounts to waiver in the simplest sense.”
Appeal from the United States District Court for the Eastern District of Wisconsin, Randa, J., Bauer, J.