United States v. Sura, James ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 05-1478
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
J AMES SURA,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 03-CR-218—Randolph T. Randa, Chief Judge.
ARGUED NOVEMBER 7, 2006—DECIDED DECEMBER 12, 2007*
Before EASTERBROOK, Chief Judge, and P OSNER and
WOOD, Circuit Judges.
WOOD, Circuit Judge. James Sura owned a World War II
Beretta, which he kept in his home. As far as this record
reveals, Sura never attempted to use the gun, nor did he
own ammunition for it. Sura was, however, a convicted
*
This opinion is being released in typescript. A
printed version will follow.
2 No. 05-1478
felon, and so when the Beretta was found in his home in
2003, he wound up in hot water, charged with being a felon
unlawfully in possession of a firearm. See 18 U.S.C.
§ 922(g)(1). In early 2004, Sura agreed to plead guilty; his
plea included a clause waiving his right to appeal his
conviction and sentence. The district court accepted the
plea and gave him a 30-month sentence. Sura now wants to
challenge that sentence, but in order to do so, he first must
convince us that his appeal waiver should be set aside. If he
can do so, he would like to challenge the district court’s
application of the advisory Sentencing Guidelines, which
call in § 2K2.1(b)(2) for a reduced sentence for a felon who
possesses a firearm used solely for sporting or collection
purposes.
Sura’s primary argument proceeds on the assumption
that we can perform surgery on his plea agreemen t, excising
only paragraph 30, which contains the waiver of his right to
appeal. But we have often held that this is not an option.
See, e.g., United States v. Lockwood, 416 F.3d 604, 607 (7th
Cir. 2005); United States v. Cieslowski, 410 F.3d 353, 363-64
(7th Cir. 2005); United States v. Whitlow, 287 F.3d 638, 640
(7th Cir. 2002). Sura asks in the alternative, however, to be
relieved of the plea altogether, on the ground that he
entered into it involuntarily. Approaching the appeal on the
latter basis, as we must, we conclude that Sura has shown
that he did not knowingly and voluntarily accept the plea
(including its waiver of his appellate rights) and thus that
the district court plainly erred when it accepted the plea.
We therefore vacate the plea and remand this case to the
district court for further proceedings.
I
Until Sura turned 49, in 1982, he apparently had no run-
ins with the law. Unfortunately, he seems to have
undergone a Hyde-like change that year, when he began
accumulating a string of convictions for sex offenses,
including sexual assault, child enticement, and disorderly
conduct. As of 2002, Sura was on probation. In July 2002,
No. 05-1478 3
Sura’s probation officer searched his home and found a
rifle, three shotguns, a Beretta pistol and ammunition. The
guns were turned over to Sura’s son, and Sura’s probation
officer warned him that he could not possess guns.
Disregarding this advice, Sura later retrieved the Beretta
pistol, which was a souvenir that a friend had brought home
after World War II and given to Sura in the 1950s. In 2003,
police discovered the Beretta once again in Sura’s
possession. According to the government, the police
searched Sura’s home with his consent, locating the Beretta
in the basement. (Sura claims that he delivered the gun to
the police. This factual dispute has no bearing on our
analysis here.)
In October 2003, Sura (by then almost 70 years old) was
indicted for being a felon in possession of a firearm; he was
charged only with possession of the Beretta. After
negotiations with the government, he signed a plea
agreement, under which he agreed to plead guilty but
reserved the right to challenge the calculation of his
sentence. As we noted earlier, the plea agreement included
a waiver of all his appellate rights.
Whether the court properly accepted Sura’s guilty plea
lies at the heart of this appeal, and so we describe the
court’s inquiries under FED. R. CRIM. P. 11 in some detail.
Initially, the court asked Sura if he was on any medication;
Sura replied that he was. Following up, the court asked
“would any of that medication affect your understanding of
what’s happening here today?” Sura replied ambiguously “I
don’t think so, sir. But I can’t say for sure.” Sura also told
the court that he was undergoing psychological treatment.
The court noted that Sura was represented by counsel, but
the court did not ask Sura if his counsel had either reviewed
the plea agreement or discussed his case with him. Instead,
the court asked Sura only, “Are you satisfied with the
representation that you have received from [your
attorney]?” and “Are there any questions that you may
have of [your attorney] at this point?” The court also asked
4 No. 05-1478
Sura “knowing the rights that you’re giving up, and the
penalties involved, is it still your wish and still your desire
to enter a plea of guilty to this count,” to which Sura
replied, “Yes, sir.” The court reiterated, “And are you doing
that because that’s what you want to do?” Sura replied,
“That’s a difficult question to answer, Your Honor. But I
have to say yes. I do have a conviction of a felony on my
record, I was in possession of the Beretta, so I have to plead
guilty.”
The court specifically asked Sura if he understood “that
by signing the Plea Agreement that you’re giving up the
rights that are contained in the Plea Agreement,” to which
Sura replied, “Yes, sir.” The court then listed some of those
rights, including the right to a trial, the right to a jury, the
standard of evidence at a trial, and the right to testify or
remain silent at trial. It said nothing, however, about the
waiver of appellate rights, thereby omitting a point
specifically required by Rule 11(b)(1)(N). The court also
asked whether “anyone has made any threats or promises
to get you to do this . . . aside from what’s contained in this
Plea Agreement,” and Sura replied, “No, sir.”
At his sentencing hearing, Sura argued for the
application of U.S.S.G. § 2K2.1(b)(2), which reduces the
Guidelines offense level to a level 6 if a defendant is
convicted of unlawful possession of a firearm but
“possessed all ammunition and firearms solely for lawful
sporting purposes or collection, and did not unlawfully
discharge or otherwise unlawfully use such firearms or
ammun ition.” Sura admitted that he knowingly broke the
law by possessing the Beretta. He told the court, “I wish I
could come before you and say this is all a mistake . . . [but]
I did have the Beretta in my possession.” But he explained,
Why did I have it? Something I’ve treasured for over 50
years. Something that some soldier actually carried
into combat with him in World War II. I never looked at
it as being a gun per se. Never owned any ammunition
for it. I would have been afraid to fire it. I didn’t even
No. 05-1478 5
kn ow it worked until I was told that your people [police
ballistics] had fired it.
The district court declined to apply the reduction to
Sura’s sentence. The court justified its refusal by noting
that Sura had previously had his probation revoked
“because of possession of firearms and ammunitions . . .
[specifically] a sword, a hunting knife, bow and arrow set,
[and] a hatchet.” The court concluded that Sura’s
possession of the Beretta “follow[ed] a pattern of notice and
repetition that makes it so –- at least elevates it from the
harmless characterization made by the defense.” The court
further justified its decision by notin g Sura’s practice of
groping women, concluding that “all periods of [Sura’s
supervised release or probation] have never been completed
without . . . a subsequent violation.” Using an offense level
of 13 and a criminal history category of VI, the court
calculated an advisory sentencing range of 33 to 41 months’
imprisonment. Based primarily on the fact that Sura was 71
years old at the time of sentencing, the court, noting that
the ultimate standard is reasonableness, imposed a below-
Guidelines sentence of 30 months. (Had the court accepted
Sura’s argument for the use of § 2K2.1(b)(2), the offense
level would have been 5 (base level 6 plus 2 for number of
firearms, minus 3 for acceptance of responsibility); for
someone like Sura in Criminal History Category VI, the
recommended range would have been 9-15 months.) After
the sentencing, Sura’s trial lawyer properly filed Sura’s
notice of appeal; later, new counsel was appointed to
represent Sura on appeal.
II
A
Because this appeal turns on the question whether Sura
is entitled to have his guilty plea set aside, we begin by
looking at FED. R. CRIM. P. 11, a “guilty-plea safeguard[].”
United States v. Ruiz, 536 U.S. 622, 631 (2002). Rule 11
generally spells out the procedures that a district court
must follow when a defendant wishes to plead guilty. It
6 No. 05-1478
exists “to assist the district judge in making the
constitutionally required determination that a defendant’s
guilty plea is truly voluntary . . . [and] to produce a
complete record at the time the plea is entered of the factors
relevant to this voluntariness determination.” McCarthy v.
United States, 394 U.S. 459, 465 (1969). “Thus, the more
meticulously the Rule is adhered to, the more it tends to
discourage, or at least to enable more expeditious
disposition of, the numerous an d often frivolous ... attacks
on the constitutional validity of guilty pleas.” Id.On December 1, 1999, a new subsection was added to what
was then Rule 11(c), “specifically to reflect the increasing
practice of including provisions in plea agreements which
require the defendant to waive certain appellate rights.”
Committee Note to the 1999 Amendments. As part of the
Rules’ overhaul in 2002, the amendment was relocated to
Rule 11(b)(1)(N) as a “stylistic only” change. Committee
Note to the 2002 Amendments. Rule 11(b)(1)(N) was in
force at the time of Sura’s guilty plea; it requires that the
defendant be told by the court “the terms of any
plea-agreement provision waiving the right to appeal or to
collaterally attack the sentence.” Rule 11(b)(1)(N). Rule
11(b) leaves no doubt that the court is required to touch
upon all of the topics listed there. It says that before the
court may accept a plea of guilty, “the court must address
the defendant personally in open court,” and that during
this colloquy, “the court must inform the defendant of, and
determine that the defendant understands,” each item in
the list that follows. Id. (emphasis added). Sura’s sentencing
took place on February 16, 2005, and so it is clear that the
district court erred by failing to mention anything about
the appellate waiver when it accepted the guilty plea.
Sura, however, never objected to this omission before the
district court. Understandably enough, he argues that he
did not become aware of the flawed Rule 11 process until he
was examining his possible appeal. Even if the forfeiture is
not surprising, however, the fact remains that he did not
properly preserve this argument before the district court. In
No. 05-1478 7
United States v. Vonn, the Supreme Court held that
forfeited objections to violations of Rule 11 must be
reviewed like all other non-structural forfeited points: for
plain error only. 535 U.S. 55, 59 (2002). Although there are
some differences in detail between Vonn and our case, the
Court’s language leaves no doubt that it was speaking about
all Rule 11 violations to which the defendant makes no
objection, not just the particular one before it. Id.; see also
United States v. Murdock, 398 F.3d 491, 496 (6th Cir. 2005)
(relying on Vonn to apply plain error review to a plea
agreement case regarding waiver of appellate rights). As the
Vonn Court explained,
[w]hen an appellate court considers error that qualifies
as plain, the tables are turned on demonstrating the
substantiality of any effect on a defendant’s rights: the
defendant who sat silent at trial has the burden to show
that his “substantial rights” were affected. [United
States v.] Olano, 507 U.S. [725,] 734-735 [(1993)]. And
because relief on plain-error review is in the discretion
of the reviewing court, a defendant has the further
burden to persuade the court that the error “‘seriously
affect[ed] the fairness, integrity or public reputation of
judicial proceedings.’” Id. at 736 ... (quoting United
States v. Atkinson, 297 U.S. 157, 160 (1936)).
535 U.S. at 62-63. Under United States v. Dominguez
Benitez, 542 U.S. 74 (2004), Sura was “obliged to show a
reasonable probability that, but for the [Rule 11] error, he
would not have entered the plea.” Id. at 76.
Before Rule 11 was amended, we had held in United States
v. Wenger, 58 F.3d 280 (7th Cir. 1995), that a district judge’s
failure to address an appeal waiver during the Rule 11
colloquy did not warrant setting aside a plea agreement as
involuntary. We noted particularly that “warnings about
waivers of appeal are not to be found” in Rule 11, and that
“Rule 11’s value is as a formulary.” Id. at 282. We also
commented that “[i]f the [plea] agreement is voluntary, and
taken in compliance with Rule 11, then the waiver of appeal
8 No. 05-1478
must be honored.” Id. at 283. Since 1999, a plea taken in
compliance with Rule 11 must include the very kind of
specific alert to a waiver of the right to appeal that we noted
was not required under the rule in 1995. The “formulary”
has changed and it now requires more. Thus, the rationale
of Wenger is consistent with a finding that because Sura’s
acceptance of the plea agreement was not taken in
compliance with Rule 11, it also might not have been
voluntary.
Since the addition of Rule 11(b)(1)(N), we have addressed
it in four cases, but three of them were nonprecedential.
The decision in United States v. Loutos, 383 F.3d 615 (7th
Cir. 2004), is the only published opinion in which we have
considered that section of the rule (or its 1999 predecessor).
Id. at 617-18. In Loutos, however, the defendant objected to
the omission and moved to withdraw his guilty plea, and so
the question before us was whether the error was harmless,
not whether it was plain. Nonetheless, the analysis of Rule
11 in Loutos, and in particular its treatment of waivers of
appellate review, remains useful. Loutos first noted that
“[t]he purpose of a Rule 11 colloquy is to expose coercion or
mistake.” Id. at 619. The court then observed that
[t]he validity of a Rule 11 colloquy is based on the
totality of the circumstances, including such factors as
“the complexity of the charge, the defendant’s level of
intelligence, age, and education, whether the defendant
was represented by counsel, the judge’s inquiry during
the plea hearing and the defendant’s statements, as well
as the evidence proffered by the government.”
Id., quoting United States v. Blalock, 321 F.3d 686, 688-89
(7th Cir. 2003).
In evaluating whether the defendant’s guilty plea was
valid “despite the district court’s omission of a specific
appellate waiver warning,” we focused on the defendant’s
background. Loutos, 383 F.3d at 619. That defendant was
particularly sophisticated: he was a practicing attorney
with nearly four decades of legal experience and was
No. 05-1478 9
therefore “familiar with contracts and the need to carefully
read documents that are contractual in nature and signed
by the party.” Id. This, in combination with the defendant’s
“acknowledg[ment] under oath that he understood the
consequences of his guilty plea, that he had not been
pressured or coerced to plead guilty, and that his plea was
voluntary” led us to conclude the district court’s omission
was harmless. Id.Following Vonn and Loutos, then, we must look to the
totality of the circumstances surrounding the negotiation
of Sura’s plea agreement and the court’s acceptance of the
plea to determine whether the district court’s failure to
mention Sura’s plea agreement waiver of appellate rights
during the plea colloquy constitutes plain error. This
includes evidence outside the Rule 11 colloquy. Vonn, 535
U.S. at 75. Throughout this process, as Dominguez Benitez
emphasized, Sura bears the burden of proof. 542 U.S. at 82.
It is important, in this context, to recall that Sura is
challenging the voluntariness of his plea agreement in an
attempted direct appeal, not in a collateral proceeding. In
United States v. Timmreck, 441 U.S. 780 (1979), the Court
held that a defendant is not entitled to collateral relief from
a conviction merely because Rule 11 may have been violated
when his plea was accepted. Id. at 785. Importantly, the
Court in Timmreck stressed that the respondent had not
argued “that he was actually unaware of the special parole
term or that, if he had been properly advised by the trial
judge, he would not have pleaded guilty.” Id. at 784. Sura, of
course, now argues both those things: that although he may
have read the plea agreement, he did not understand the
meaning of the appeal waiver, and that he would not have
pleaded guilty if he had. (He said nothing about the appeal
waiver in particular during his plea colloquy; his comment
about reading the agreement and discussing it with counsel
referred to the agreement as a whole. The district court
spent two pages of the plea colloquy explaining to Sura
what rights he was waiving, but it was silent as to Sura’s
waiver of appellate rights.)
10 No. 05-1478
Peguero v. United States, 526 U.S. 23 (1999), while closer
to Sura’s case because it involved a failure to advise a
defendant about his right to appeal, was also a case
involving a collateral attack on a conviction under 28
U.S.C. § 2255. Once again, the record showed that the
petitioner “had full knowledge of his right to appeal,” and
thus the Court found that he was not prejudiced by the
omission. 526 U.S. at 28. Timmreck and Peguero reinforce
the important point that Sura must do more than show that
the Rule was technically violated. He must show that his
guilty plea was involuntary and that he would not have
entered it on the basis of the record as a whole, which is the
inquiry this court followed in Loutos.
At least four other circuits have undertaken a post-Vonn
plain error analysis in cases where the district court failed
to mention the defendant’s waiver of appellate rights when
it went through the Rule 11 plea colloquy. These decisions
demonstrate that “plain error” is not an automatic
synonym for “no error.” The Sixth Circuit, for example,
found plain error where the defendant was not told about
the waiver of appellate rights in his plea agreement during
the Rule 11 colloquy and the record lacked any other
indication of the defendant’s specific knowledge of that
waiver. United States v. Murdock, supra, 398 F.3d at 498-99.
The court there relied on the record as a whole,
acknowledging Vonn and stating that “[w]e emphasize that
in the absence of an inquiry into the appellate waiver by the
district court as required under the rule, some other event
could suffice to insure that [a] defendant’s waiver was
knowing and voluntary.” Id. at 497-98. The court gave as
examples “a defendant . . . [who] assure[s] the district court
that he has reviewed the waiver provision (or, at a bare
minimum, the plea agreement) with his attorney and that
his attorney has explained it” or a prosecutor “adequately
address[ing] the waiver” in her summary of the plea
agreement in the colloquy. Id. at 498. More recently, the
Sixth Circuit upheld just such a waiver of appellate rights
in a case where the prosecutor, and not the judge, pointed
No. 05-1478 11
out the waiver in the plea agreement during the colloquy.
United States v. Robinson, 455 F.3d 602, 610 (6th Cir. 2006).
The Ninth Circuit found plain error in a case similar to
Murdock where “the magistrate judge asked each defendant
only the general questions whether they had read and
understood their ‘five or six-page plea agreement,’ and made
no specific reference to the waiver of the right to appeal the
sentence.” United States v. Arellano-Gallegos, 387 F.3d 794,
797 (9th Cir. 2004); see also United States v. Alarid, 123
Fed. Appx. 294, 295 (9th Cir 2006).
Like the Sixth Circuit, the Tenth has sometimes found
plain error and sometimes not. In United States v. Edgar,
the Tenth Circuit held that “[a] mere silent record does not
satisfy [the defendant’s] burden” that she did not knowingly
and voluntarily waiver her appellate rights. 348 F.3d 867,
873 (10th Cir. 2003). The Edgar court looked to the plea
agreement’s plain language of waiver, the signature section
of the agreement confirming that some rights are being
waived knowingly, and the defendant’s testimony during the
colloquy that he had read and understood the agreement
and had consulted with his attorney before signing it. Id. at
872. Based on that evidence, the court concluded that the
waiver was voluntary and knowing, and thus there was n o
plain error, even though neither the court nor the
prosecutor mentioned it during the colloquy. Id. at 873.
Another Tenth Circuit decision three months earlier, in
contrast, held that a court’s statement to the defendant that
he had “given up your right to appeal your sentence which
you might otherwise have” was not adequate to inform him
that he was barred from “any subsequent effort to seek
modification of his sentence.” United States v.
Chavez-Salais, 337 F.3d 1170, 1174 (10th Cir. 2003).
Finally, in a nonprecedential order, the Fifth Circuit
concluded that if the waiver is not mentioned during the
arraignment, then “the waiver cannot be held to have been
knowing and voluntary,” without any additional analysis.
United States v. Rodriguez, 98 Fed. Appx. 355, 356 (5th Cir.
12 No. 05-1478
2004); see also United States v. Hoot, 86 Fed. Appx. 16, 16
(5th Cir. 2004).
B
We find the Sixth Circuit’s analysis in Murdock to be
most helpful in resolving Sura’s appeal. Murdock applies
the well-established plain-error analysis to the precise
question we now face; in so doing, it stresses the need to
take the totality of the circumstances into account. In order
to show plain error, the defendant must demonstrate that
there is “‘1) error, 2) that is plain, and 3) that affects
substantial rights[; and if] all three conditions are met, an
appellate court may exercise its discretion to notice a
forfeited error, but only if 4) the error seriously affects the
fairness, integrity, or public reputation of the judicial
proceedings.” Murdock, 398 F.3d at 496 (quoting Johnson
v. United States, 520 U.S. 461, 467 (1997), which in turn
summarizes United States v. Olano, 507 U.S. 725, 732-35
(1993)). See also, e.g., United States v. Simpson, 479 F.3d
492, 496 (7th Cir. 2007); United States v. Nitch, 477 F.3d
933, 935 (7th Cir. 2007).
As we noted earlier, there is no serious dispute that an
error occurred here. Rule 11(b)(1)(N) requires the district
court to inform the defendant during the plea colloquy of
the waiver of appellate rights contained in the plea
agreement and to ensure that the defendant understands
the waiver. The district court did not do so. That was error,
and the error was “plain” in the sense of the second part of
the Olano/Johnson analysis. (Confusingly, the same term is
used for the ultimate conclusion. We do not mean to say
that plain error in the Rule 52 sense occurs every time
advice is not given; the ultimate conclusion depends on all
four parts of the required analysis.)
The third question is whether Sura’s substantial rights
were affected by the error. This is the element on which the
Supreme Court focused in Dominguez Benitez. There the
Court held that, in order to show that substantial rights
were affected, the defendant “must show a reasonable
No. 05-1478 13
probability that, but for the error, he would not have
entered the plea.” 542 U.S. at 83. One step (although not the
only step) along the way to the defendant’s demonstration
that the error affected his decision to plead guilty is to look
at whether the defendant understood his plea agreement.
The point of Rule 11(b)(1)(N) is that a signed piece of paper
is not enough. Most criminal defendants are not legal
experts, which is why Rule 11(b)(1)(N) puts a check in the
system in the form of a requirement that the district court
explain in plain language what consequences will flow from
the guilty plea, including (where applicable) the loss of
appellate rights. If the safeguard required by Rule 11 is
missing, the record must reveal an adequate substitute for
it, and the defendant must show why the omission made a
difference to him.
When we look to the record in this case, we find nothing
that suffices as an adequate substitute. Unlike the
defendant in Loutos, Sura has no legal experience apart
from his previous criminal convictions. The record gives us
no indication whether in any of those earlier cases he
waived his appellate rights, let alone whether he ever
pleaded guilty using a written plea agreement. The district
court did not ask Sura whether his attorney explained this
part of the plea agreement to him, or even whether he
reviewed the agreement with his attorney. The prosecutor
did not interject and direct the court’s attention to the
waiver. The court listed several rights that Sura was
waiving, but it confusingly omitted the right to appeal.
Sura’s explanation for why he accepted the plea agreement
gives no assurance that he understood this aspect of the
deal, and he now argues that he did not. The explanation
suggests, in fact, that he may mistakenly have thought that
he had to accept the agreement because he was willing to
admit to his guilt, when in fact he could have pleaded guilty
without a plea agreement.
Nothing we have said in any way undercuts the fact that
we presume that statements made under oath during a plea
colloquy are true. United States v. Standiford, 148 F.3d 864,
14 No. 05-1478
868 (7th Cir. 1998). Everything Sura told the district court
during that exchange can be taken as true. The problem is
that no one said anything about the waiver of appellate
rights. It is this utter silence that causes the problem here.
If we were to go further and assume that the waiver was
knowing and voluntary based only on the facts that Sura (at
the time 71 years old and undergoing mental health
treatment) is literate and signed the agreement, we would
render meaningless not only Rule 11(b)(1)(N), but also the
broader inquiry into prejudice that the Supreme Court
requires. Rule 11(b)(1)(N), or its equivalent for plain error
purposes, exists precisely to ensure that the defendant
actually knows what rights he is signing away. Here, the
record does not reveal any substitute for the safeguards of
Rule 11. We conclude that Sura’s waiver of his appellate
rights was not knowing and voluntary. Furthermore, in
light of Sura’s confused responses to the district judge’s
questions, his age, and his mental con dition, we think it
likely that he would have assessed his strategic position
differently had he realized that he was losing the chance to
challenge the district court’s sentencing decision, which
was based primarily on crimes unrelated to the crime of
conviction and gave little weight to Sura’s individual
circumstances. We note as well that the 30-month sentence
Sura received (three months less than the low end of the
advisory range the judge used) is twice as long as the high
end of the 9 to 15-month range that would have applied if
the judge had found him eligible for the sporting-use
discount. This, too, supports a finding that Sura’s
substantial rights were affected by the error.
To complete the plain error analysis, we must consider
whether this particular error seriously affects the fairness,
integrity, or public reputation of the judicial proceedings.
Again, we find the Sixth Circuit’s analysis in Murdock
persuasive. That court concluded that “[t]he right to
appeal, while not of constitutional dimension, . . . is
nonetheless of critical importance to a criminal defendant.”
398 F.3d at 498. It added that “[w]e agree with the Ninth
No. 05-1478 15
Circuit’s approach and conclude that, given the ‘wholesale
failure’ to ascertain that Murdock understood the waiver
provision, ‘the enforcement of the waiver in these
circumstances would seriously affect the fairness, integrity
and public reputation of our plea proceedings.’” Id., citing
Arellano-Gallegos, 387 F.3d at 797. Although we enforce
knowing and voluntary plea waivers, this court has
observed that “there is a risk that appeal waivers do
nothing but cut off potentially meritorious arguments . . .
for direct appeal.” Whitlow, 287 F.3d at 642. Responsible
counsel, faced with nothing but frivolous arguments for
appeal, will choose to file an Anders brief, see Anders v.
California, 386 U.S. 738 (1967), and suggest to the court
that an appeal should be dismissed. However, even in those
cases, this court has held that if a defendant tells a lawyer
to appeal and the lawyer drops the ball, then the defendant
has been deprived of his Sixth Amendment right to
assistance of counsel. See Castellanos v. United States, 26
F.3d 717, 718-19 (7th Cir. 1994). When a lawyer has failed to
file notice of appeal upon her client’s request, we routinely
grant motions under 28 U.S.C. § 2255 and allow the appeal
process to go forward. See Rodriquez v. United States, 395
U.S. 327 (1969). We conclude, therefore, that Sura’s
unwitting waiver of his right to appeal seriously affected
the fairness of the judicial proceedings.
We note that this outcome may not help Sura in the end.
At oral argument, we asked Sura’s counsel if Sura was
aware that if he prevailed, his plea would have to be set
aside and he would lose the benefits of any parts of the plea
agreement that benefit him. Counsel assured us that Sura
was aware of this risk and nonetheless wanted to set aside
his plea.
III
Because the plea must be set aside, it is possible that Sura
may go to trial on remand, or he may reach a new
agreement with the government. Either way, it is possible
that the same question that Sura is now presenting will
16 No. 05-1478
arise again under the Sentencing Guidelines. We therefore
offer some observations on those provisions of the
Guidelines. As we noted at the outset, in computing the
advisory Guideline range, the district court did not give
Sura the benefit of U.S.S.G. § 2K2.1(b)(2), which requires
a reduction in the recommended sentence if the defendant
possessed the firearm solely for “lawful sporting purposes
or for collection.” The district court thought that Sura was
not entitled to this adjustment because he had been told
earlier that he was not permitted to possess firearms and
because of his record of harassing women.
There is a methodological problem here that must be
cleared up in any future sentencing proceeding. Neither
reason the court gave is pertinent to the initial
computation of Sura’s Guideline range. Section 2K2.1(b)(2)
would never come into play for a defendant who had the
right to possess either a firearm or ammunition; thus, the
fact that Sura was expressly warned that he should not
have these items is beside the point. Sura’s unfortunate
behavior toward women is even further afield from the
Guidelines that address firearms offenses. In any further
proceedings, the district court must make a focused factual
determination about the use to which Sura put his Beretta
(and any other guns that may be at issue once the plea
agreement is gone). Application Note 10 to § 2K2.1(b)(2), on
which the government relied at Sura’s sentencing, does not
support the approach that the court took. At the time, that
Note read as follows:
‘lawful sporting purposes or collection’ as
determined by the surrounding circumstances,
provides for a reduction to an offense level of 6.
Relevant surrounding circumstances include the
number and type of the firearms, the amount and
type of ammunition, the location and circumstances
of possession an d actual use, the nature of the
defendant’s criminal history (e.g., prior convictions
for offenses involving firearms), and the extent to
which possession was restricted by local law.
No. 05-1478 17
As the Eighth Circuit held in United States v.
Ramirez-Rios, 270 F.3d 1185, 1187 (8th Cir. 2001), this
amounts to saying that “[i]n determining whether §
2K2.1(b)(2) applies, the focus of the inquiry is the ‘intended
lawful use’ [of the firearm].” This court has applied a
similar approach to the Guideline and the application note.
See United States v. Lewitzke, 176 F.3d 1022, 1029 n.7 (7th
Cir. 1999) (noting that a defendant previously convicted of
domestic violence could be eligible for the reduction).
This is not to say that the district court is precluded from
taking factors like the probation officer’s warning and
Sura’s unrelated convictions into account. As the Supreme
Court just reaffirmed in Gall v. United States, No. 06-7949,
2007 WL 4292116 *7-8 (U.S. Dec. 10, 2007), district judges
have broad discretion to choose an appropriate sentence.
See also Rita v. United States, 127 S.Ct. 2456, 2465 (2007).
Courts of appeals then review sentences for reasonableness,
using an abuse-of-discretion standard. Gall, 2007 WL
4292116 at *2. The factors outlined in 18 U.S.C. § 3553(a)
are easily broad enough to allow the district court to
consider Sura’s individual characteristics, after it has
properly computed the advisory Guideline range. See
especially § 3553(a)(1). We hold only that, as Gall
reiterated, the judge must begin with a properly computed
Guideline range. 2007 WL 4292116 at *7; see also United
States v. Nelson, 491 F.3d 344, 347 (7th Cir. 2007); United
States v. Sriram, 482 F.3d 956, 962 (7th Cir. 2007).
The judgment of the district court is REVER S E D and the
case is REMANDED for further proceedings consistent with
this opinion.
EASTERBROOK, Chief Judge, dissenting. Sura waived his
right to appeal. He appealed anyway, thinking that he could
enjoy the benefits of the plea agreement while avoiding its
18 No. 05-1478
detriments. Informed at oral argument that this is
impossible—that the waiver must be enforced as long as the
plea stands, see United States v. Wenger, 58 F.3d 280 (7th
Cir. 1995)—Sura’s lawyer waffled but ultimately told us
that his client wants to withdraw the plea and take the risk
of a higher sentence if the prosecutor should add charges.
But once a plea has been accepted and sentence imposed,
the plea may not be withdrawn unless reversible error has
occurred. Compare Fed. R. Crim. P. 11(d) (withdrawal before
sentence) with Rule 11(e) (no withdrawal after sentence).
Sura never asked the district court for an opportunity to
plead anew, even after the judge pronounced a sentence that
exceeded his expectation.
Counsel argues that the district judge’s failure to follow
Fed. R. Crim. P. 11(b)(1)(N) nonetheless allows his client to
start over. Rule 11(b)(1)(N) requires the judge to inform the
defendant orally about “the terms of any plea-agreement
provision waiving the right to appeal or to collaterally
attack the sentence.” The district judge failed to comply
with this rule. Neither the prosecutor nor defense counsel
called the omission to the judge’s attention, then or later.
United States v. Vonn, 535 U.S. 55 (2002), holds that the
plain-error standard governs when a defendant who did not
move to withdraw his guilty plea in the district court
argues on appeal that the plea was defective because of a
district judge’s failure to comply with Rule 11(b)(1). See
Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S. 725(1993). Vonn also holds that, when conducting plain-error
review, a court of appeals must consult the whole record
and is not limited to the transcript of proceedings in open
court. 535 U.S. at 74–76. United States v. Dominguez
Benitez, 542 U.S. 74, 83 (2004), adds that, to demonstrate
plain error, “a defendant must show a reasonable
probability that, but for the error, he would not have
entered the plea.” See also United States v. Arenal, 500 F.3d
634, 637–39 (7th Cir. 2007).
Sura has not shown that, but for the district judge’s
No. 05-1478 19
omission, “he would not have entered the plea.” Indeed,
Sura has never asserted this, let alone “shown” it. Nor does
he maintain that district judges’ compliance with Rule
11(b)(1)(N), which became effective in December 1999, leads
a non-trivial fraction of defendants to balk and refuse to
plead guilty. The Committee Note explaining the
amendment says that the advice is designed to make a clear
record and ensure that pleas are voluntary; but for a
defendant who knows about the waiver before appearing in
court, a reminder from the bench will not affect the plea.
Before assuming (as my colleagues do) that a heads-up from
a judge will jolt defendants and alter their decisions to plead
guilty (the standard under Dominguez Benitez), we ought to
know whether this happens frequently, rarely, or never—in
either the federal system as a whole or the Eastern District
of Wisconsin.
Sura himself has not told us how a statement complying
with Rule 11(b)(1)(N) would have affected his decision—not
in the district court, not in his appellate brief, and not at
oral argument. He has not filed an affidavit describing what
he would have done had the district judge followed Rule
11(b)(1)(N), nor has Sura asked for a hearing at which
evidence could be adduced.
What Sura would have done is a question of fact. It ought
not be resolved by a court of appeals unbidden. Ours is an
adversarial system, after all. Contentions never made by
one side are never addressed by the other. What
justification have we for cutting the prosecutor and district
judge out of this process and making a critical finding
spontaneously? Just the other day the Supreme Court noted
the vital role that a district judge plays in sentencing. See
Gall v. United States, No. 06–7949 (U.S Dec. 10, 2007). Yet
my colleagues leave him with no role to play in finding facts
on an issue that Dominguez-Benitez makes a sine qua non
to withdrawing the plea.
If forced to reach a decision without findings or
argument—for, to repeat, Sura has never even asserted that
20 No. 05-1478
he would not have pleaded guilty had the judge complied
with Rule 11(b)(1)(N)—I should be inclined to doubt that
the district judge’s omission made any difference. Here is
where Vonn’s holding that the court must consider the
whole record matters. The advice required by Rule
11(b)(1)(N) could not have made a difference if Sura already
knew that his plea agreement waived any entitlement to
appeal.
A district judge might affect a defendant’s choice by
explaining that the right to appeal is worth more than a
given defendant believes. If, for example, the plea came after
some debatable rulings, a judge’s comment that the court of
appeals may well take a different view of the subject might
dissuade a defendant from promising to forego an appeal.
But Rule 11(b)(1)(N)—unlike, say, 18 U.S.C.
§3143(b)(1)(B)—does not call on the district judge to
evaluate the probability of reversal; all it requires is that
the judge ensure that the defendant knows of the plea
agreement’s contents. If the defendant already has that
knowledge, then the judge’s repetition will not affect his
decision.
The written plea agreement contains Sura’s signature
immediately under a section (captioned
“Acknowledgement”) stating that Sura has read the
agreement and that his lawyer has explained “every part”
of it to him orally. Counsel also signed the agreement
immediately under this representation: “I have carefully
reviewed every part of this agreement with the defendant.”
Sura is literate; he has never contended that when he made
these representations about what he (and his lawyer) had
done, he was lying to the court. Nor has counsel filed an
affidavit telling us that he lied when he assured the court
and the prosecutor that he explained the agreement to his
client.
If either Sura or his lawyer had advanced such an
assertion, we would need to decide whether, by recanting, a
defendant may obtain a hearing. The usual answer is no,
No. 05-1478 21
that both litigants and lawyers are bound by their initial
representations made in connection with a guilty plea. See,
e.g., United States v. Peterson, 414 F.3d 825 (7th Cir. 2005);
United States v. Stewart, 198 F.3d 984 (7th Cir. 1999);
United States v. Messino, 55 F.3d 1241, 1248 (7th Cir. 1995);
United States v. Ellison, 835 F.2d 687, 693 (7th Cir. 1987).
In civil litigation courts regularly hold people to their
contracts whether they read them or not; why should what
is normal in civil cases be deemed a miscarriage of justice
in criminal cases? It won’t do to reply “because Rule
11(b)(1)(N) requires oral advice”; that tells us that the
district judge made an error but does not establish the
miscarriage-of-justice component of plain-error review.
Omission of an otiose reminder cannot be a miscarriage of
justice.
Because Sura has never asserted that he was unaware of
the document’s contents, we must take it as established
that he read the whole agreement, that his lawyer told him
both what it says and what it means, and that Sura
consequently had actual knowledge of the waiver. My
colleagues’ conclusion that the written agreement counts
for nothing cannot be squared with the holding of Vonn that
the court must consider the full record, or with the holding
of both Vonn and Dominguez Benitez that the defendant
bears the burdens of both production and persuasion. But
whether or not we accept the representations to which Sura
and his lawyer affixed their signatures, we surely cannot
act as if the opposite of those assurances were the truth!
The most Sura could be entitled to is a hearing at which the
state of his knowledge, and his likely response to advice
under Rule 11(b)(1)(N), would be explored. Decision on an
empty record, bypassing the district judge’s role as trier of
fact, is insupportable.
My colleagues several times ask whether Sura’s plea was
“voluntary.” That’s a red herring. Wenger holds that in-
court notice about an agreement’s waiver clause is not
essential to voluntariness. When Rule 11(b) was amended in
1999, that step did not change the meaning of the
22 No. 05-1478
Constitution. See also United States v. Timmreck, 441 U.S.
780 (1979) (a judge’s failure to deliver the advice required by
Rule 11 does not spoil a plea’s voluntariness). Rule 11
requires district judges to go beyond the constitutional
minimum.
Even if there were a “voluntariness” question in this
case, however, Sura’s knowledge of the agreement’s terms
would vindicate the plea. That’s the point of Peguero v.
United States, 526 U.S. 23 (1999), which holds that a
defendant’s actual knowledge of a subject on which the
district judge failed to supply information required by a
Rule of Criminal Procedure forecloses any challenge based
on the Constitution. And, to repeat one last time, Sura has
never denied having actual knowledge of the waiver.
I n the end my colleagues appear to believe that a district
judge’s failure to comply with Rule 11(b) should lead to
reversal in all but the rare case (such as, for example, a
defendant who is a lawyer). How else are we to understand
this passage (slip op. 12-13):
The point of Rule 11(b)(1)(N) is that a signed piece of paper
is not enough. Most criminal defendants are not legal
experts, which is why Rule 11(b)(1)(N) puts a check in the
system in the form of a requirement that the district court
explain in plain language what consequences will ?ow from
the guilty plea, including (where applicable) the loss of
appellate rights. If the safeguard required by Rule 11 is
missing, the record must reveal an adequate substitute for
it, and the defendant must show why the omission made a
difference to him.
This approach, which my colleagues attribute to United
States v. Murdock, 398 F.3d 491 (6th Cir. 2005), has a
respectable history; the Supreme Court said much the same
thing in McCarthy v. United States, 394 U.S. 459 (1969). But
Rule 11(h) was added in 1983 to abrogate McCarthy, and
decisions such as Vonn and Dominguez Benitez place on
defendants the burden of showing plain error if no one
alerted the district court to the problem. A district judge
No. 05-1478 23
ought to ensure that the defendant knows about important
parts of a plea bargain (this is the sense in which the Rule
treats the writing alone as insufficient), but this does not
imply that every omission must have affected the decision
to enter the plea. There are ways other than oral advice
from a judge to show a defendant’s consent; this case
illustrates the point.
To say that Sura’s signature on a written agreement is
not dispositive is not to say that the state of his knowledge
must be ignored. If Sura were not literate in English, or if
his lawyer had filed an affidavit revealing that, despite
appearances, Sura did not know of the waiver, then an
evidentiary hearing could be held to explore where the truth
lies. But to conclude, as my colleagues do, that because Rule
11(b)(1)(N) is designed to place on the record the fact that
defendants are aware of waivers, then knowledge of a waiver
imparted by other means must be ignored, is to repeat the
error that led the Supreme Court to reverse the court of
appeals in Vonn and Dominguez Benitez.
The possibility that the district judge erred in calculating
the range under the Sentencing Guidelines does not help
Sura. First, whether any error occurred remains unclear
(and will remain so until proceedings on remand). Second,
this inquiry is exactly what a waiver of appeal blocks. Sura
gave up this line of argument in exchange for concessions
by the prosecutor. We cannot properly make a waiver’s
validity depend on acts that post-date the plea’s acceptance.
See, e.g., Nunez v. United States, 495 F.3d 544 (7th Cir.
2007); United States v. Joiner, 183 F.3d 635, 644–45 (7th
Cir. 1999); Jones v. United States, 167 F.3d 1142, 1145 (7th
Cir. 1999).
Many circuit judges are attracted to the idea that guilty
pleas entered after inadequate advice, whether from the
judge or from defense counsel, should be set aside more or
less automatically. For a recent example, see Hoffman v.
Arave, 455 F.3d 926 (9th Cir. 2006) (bad advice given by
counsel during plea negotiations is ineffective assistance,
24 No. 05-1478
and defendant need not allege or prove that, if the advice
had been better, he would have entered a different plea),
rehearing en banc denied over a dissent of seven judges, 481
F.3d 686 (9th Cir. 2007), cert. granted under the name Arave
v. Hoffman, No. 07-110 (U.S. Nov. 5, 2007). But the Supreme
Court has a different view, exemplified not only by Vonn
and Dominguez Benitez but also by Hill v. Lockhart, 474
U.S. 52, 58 (1985) (“to satisfy the ‘prejudice’ requirement,
[a] defendant [who maintains that ineffective assistance of
counsel led to a guilty plea] must show that there is a
reasonable probability that, but for counsel’s errors, he
would not have pleaded guilty and would have insisted on
going to trial.”).