United States v. Sura, James ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-1478
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JAMES SURA,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 03-CR-218—Rudolph T. Randa, Chief Judge.
____________
ARGUED NOVEMBER 7, 2006—DECIDED DECEMBER 12, 2007Œ
OPINION PUBLISHED JANUARY 2, 2008
____________
Before EASTERBROOK, Chief Judge, and POSNER 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 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
Œ
This opinion was originally released in typescript on
December 12, 2007.
2 No. 05-1478
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 agreement,
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 involun-
tarily. 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 dis-
trict 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 under-
gone a Hyde-like change that year, when he began accu-
mulating 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, Sura’s
No. 05-1478 3
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 bear-
ing 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 negotia-
tions 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 medica-
tion; Sura replied that he was. Following up, the court
asked “would any of that medication affect your under-
standing 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
4 No. 05-1478
have received from [your attorney]?” and “Are there any
questions that you may have of [your attorney] at this
point?” The court also asked 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, how-
ever, about the waiver of appellate rights, thereby omit-
ting 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 applica-
tion of U.S.S.G. § 2K2.1(b)(2), which reduces the Guide-
lines 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 ammunition.”
Sura admitted that he knowingly broke the law by pos-
sessing 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,
No. 05-1478 5
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 am-
munition for it. I would have been afraid to fire it.
I didn’t even know 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 posses-
sion 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 noting 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 ac-
ceptance of responsibility); for someone like Sura in
Criminal History Category VI, the recommended range
would have been 9 to 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.
6 No. 05-1478
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
exists “to assist the district judge in making the con-
stitutionally 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 and often frivo-
lous . . . 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 agree-
ments which require the defendant to waive certain
appellate rights.” Committee Note to the 1999 Amend-
ments. As part of the Rules’ overhaul in 2002, the amend-
ment 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
No. 05-1478 7
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 fol-
lows. 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 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). Al-
though 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 quali-
fies 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
8 No. 05-1478
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 dur-
ing 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 formu-
lary.” 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 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 ad-
dressed 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
No. 05-1478 9
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
therefore “familiar with contracts and the need to care-
fully 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 under-
stood 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 negotia-
tion 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,
10 No. 05-1478
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. Impor-
tantly, the Court in Timmreck stressed that the respon-
dent 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 agree-
ment, 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 particu-
lar 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.)
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 rein-
force the important point that Sura must do more than
show that the Rule was technically violated. He must
No. 05-1478 11
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 re-
quired 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 mini-
mum, 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 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 defen-
dant only the general questions whether they had read and
12 No. 05-1478
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 waive 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 signa-
ture section of the agreement confirming that some rights
are being waived knowingly, and the defendant’s testi-
mony during the colloquy that he had read and under-
stood 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 know-
ing, and thus there was no 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. 2004); see also United States v. Hoot, 86 Fed.
Appx. 16, 16 (5th Cir. 2004).
No. 05-1478 13
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 demon-
strate that there is “ ‘ 1) error, 2) that is plain, and 3)
that affects substantial rights[; and if] all three condi-
tions are met, an appellate court may exercise its discre-
tion to notice a forfeited error, but only if 4) the error
seriously affects the fairness, integrity, or public reputa-
tion 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 reason-
14 No. 05-1478
able 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 demon-
stration 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 defen-
dants 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 defen-
dant 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 dis-
trict court did not ask Sura whether his attorney ex-
plained 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 under-
stood 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 agree-
ment because he was willing to admit to his guilt, when
in fact he could have pleaded guilty without a plea agree-
ment.
No. 05-1478 15
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, 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 condition, we think
it likely that he would have assessed his strategic posi-
tion 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 individ-
ual 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 fair-
16 No. 05-1478
ness, integrity, or public reputation of the judicial pro-
ceedings. 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 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 argu-
ments . . . 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 Amend-
ment 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
No. 05-1478 17
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
arise again under the Sentencing Guidelines. We there-
fore 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 pur-
poses 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 computa-
tion 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 fur-
ther 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
18 No. 05-1478
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 surround-
ing circumstances include the number and type of the
firearms, the amount and type of ammunition, the
location and circumstances of possession and 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.
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
No. 05-1478 19
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 REVERSED 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 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 prosecu-
tor should add charges.
But once a plea has been accepted and sentence im-
posed, 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 with-
drawal 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
20 No. 05-1478
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 be-
cause 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 conduct-
ing plain-error review, a court of appeals must consult the
whole record and is not limited to the transcript of pro-
ceedings 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
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 explain-
ing 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
No. 05-1478 21
Dominguez Benitez), we ought to know whether this
happens frequently, rarely, or never—in either the fed-
eral system as a whole or the Eastern District of Wiscon-
sin.
Sura himself has not told us how a statement comply-
ing with Rule 11(b)(1)(N) would have affected his deci-
sion—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 withdraw-
ing the plea.
If forced to reach a decision without findings or argu-
ment—for, to repeat, Sura has never even asserted that
he would not have pleaded guilty had the judge com-
plied 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 en-
titlement to appeal.
A district judge might affect a defendant’s choice by
explaining that the right to appeal is worth more than a
22 No. 05-1478
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 “Acknowledge-
ment”) 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 agree-
ment 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, 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
No. 05-1478 23
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 estab-
lished 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 representa-
tions to which Sura and his lawyer affixed their signa-
tures, 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
Constitution. See also United States v. Timmreck, 441 U.S.
780 (1979) (a judge’s failure to deliver the advice re-
quired by Rule 11 does not spoil a plea’s voluntariness).
Rule 11 requires district judges to go beyond the constitu-
tional minimum.
Even if there were a “voluntariness” question in this
case, however, Sura’s knowledge of the agreement’s terms
24 No. 05-1478
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.
In 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 under-
stand this passage (slip op. 14):
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.
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 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),
No. 05-1478 25
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 knowl-
edge 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 calculat-
ing the range under the Sentencing Guidelines does not
help Sura. First, whether any error occurred is unclear
(and will remain so until proceedings on remand). Second,
an inquiry into the merits 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,
26 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 ‘preju-
dice’ 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.”).
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-2-08