United States v. Linder, Michael G. ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 06-4414 & 06-4415
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MICHAEL G. LINDER,
Defendant-Appellant.
____________
Appeals from the United States District Court
for the Northern District of Illinois, Western Division.
Nos. 04 CR 50004 & 06 CR 50038—Philip G. Reinhard, Judge.
____________
ARGUED JANUARY 16, 2008—DECIDED JUNE 19, 2008
____________
Before MANION, WOOD, and SYKES, Circuit Judges.
MANION, Circuit Judge. Michael G. Linder was in the
business of providing services to union pension and
health and welfare benefit plans. Linder entered into
contracts to be the third-party administrator for the
plans, and, in that capacity, exercised control over the
plans’ assets. Linder abused his position, and two fed-
eral criminal prosecutions followed. In December 2004,
Linder pleaded guilty to two counts of giving a thing of
value in order to influence an employee benefit plan in
violation of 18 U.S.C. § 1954. Less than two years later,
Linder pleaded guilty to two counts of mail fraud in
2 Nos. 06-4414 & 06-4415
violation of 18 U.S.C. §§ 1341 and 1346 and five counts of
theft or embezzlement from an employee benefit plan in
violation of 18 U.S.C. § 664. At a consolidated sentencing
hearing for the two cases, the district judge sentenced
Linder to 60 months’ imprisonment on the two § 1954
counts, 84 months’ imprisonment on the two mail fraud
counts, and 60 months’ imprisonment on each of the § 664
counts. The sentences of imprisonment on all the counts
were to be served concurrently. Linder has filed a notice
of appeal in both cases. We dismiss Linder’s appeal
challenging his sentence in the 2006 case and affirm
Linder’s appeal challenging his sentence in the 2004 case.
I.
Linder, through his company Joseph/Anthony and
Associates, Inc. (“Joseph/Anthony”), acted as a third-party
administrator for many union employee pension and
health and welfare benefit plans. In late 1998 and
early 1999, Linder gave Harley Davidson motorcycles
to individuals closely connected with some of the plans
that Joseph/Anthony serviced. One $20,000 motorcycle
went to Fred Schreier, the President of Ironworkers
Local 146 and a trustee of two of its pension plans. Linder
gave another motorcycle to Thomas Kisting, the Business
Agent of Ironworkers Local 498 who was also the Plan
Administrator of two of that union local’s pension plans.
In return for these motorcycle “gifts,” Linder expected to
influence the investment decisions Schreier and Kisting
made regarding their union locals’ pension funds.
While Linder was buying influence with these union
officials he was also defrauding their and many other
pension plans. Linder told the trustees of the pension
Nos. 06-4414 & 06-4415 3
plans that their funds were being invested in self-directed
mutual funds. Instead, he forged the signatures of the
trustees and enrolled the plans into annuity contracts
with Nationwide Life Insurance Company. In return for
the business, Linder received millions of dollars in com-
missions and fees from Nationwide, paid through
Joseph/Anthony and Liz/Mar and Associates, Inc. (an-
other company controlled by Linder). Linder did not
disclose to the trustees the compensation he received
from Nationwide, which was not provided for in the
service agreements between Joseph/Anthony and the
pension plans.
In addition to defrauding the pension plans, Linder
was also embezzling funds from three of those plans, as
well as two of the union locals’ health and welfare
benefit plans. Linder inflated the bills for the premiums of
the life insurance that Joseph/Anthony purchased for
union members participating in the three pension plans,
as well as the “stop-loss” insurance for the two health
and welfare benefit plans. After Linder paid the pre-
miums from the assets of the plans, he siphoned off for
himself the rest of what he had billed the plans. All in all,
between his embezzling and defrauding, Linder stole
around $7,000,000 from the plans.
Linder’s malfeasance finally caught up with him and,
on January 27, 2004, a federal grand jury in Rockford,
Illinois, returned an indictment in Cause No. 04 CR 50004
(“2004 case”) charging Linder, based on his motorcycle
“gifts,” with two counts of giving a thing of value in order
to influence an employee benefit plan in violation of 18
U.S.C. § 1954. Although a superseding indictment added
a third count charging conversion of funds from an em-
ployee benefit plan in violation of 18 U.S.C. § 664, Linder
4 Nos. 06-4414 & 06-4415
pleaded guilty to only the first two counts on December 10,
2004. On March 1, 2005, the government filed an agreed-
upon motion, which was granted, to postpone Linder’s
sentencing because of “other allegations of criminal
misconduct” by Linder that were under investigation by
the government.
The government’s investigation of the other allegations
led to further charges. On June 30, 2006, the government
filed an information in Cause No. 06 CR 50038 (“2006
case”) charging Linder with two counts of mail fraud
in violation of 18 U.S.C. § 1341 and five counts of convert-
ing funds from employee benefit plans in violation of 18
U.S.C. § 664. On the same day, Linder appeared before
the district court to plead guilty to the information pursu-
ant to a written plea agreement. The plea agreement
listed the total amount of fraud, converted property, and
relevant conduct for the 2006 case as approximately
$6,930,155. The plea agreement also contained a calcula-
tion, “preliminary in nature,” of Linder’s sentencing
range under the United States Sentencing Guidelines,
which was estimated at 78-97 months’ imprisonment. The
plea agreement stated that “[t]he defendant understands
that the . . . court ultimately determines the facts and law
relevant to sentencing, and that the court’s determinations
govern the final sentencing guidelines calculation.” It
also stated that “the validity of this Agreement is not
contingent upon the . . . court’s concurrence with the
above calculations.”
In exchange for Linder’s cooperation and other conces-
sions, the plea agreement provided pursuant to Federal
Nos. 06-4414 & 06-4415 5
Rule of Criminal Procedure 11(c)(1)(C)1 that “the sen-
tence imposed by the court shall include a term of impris-
onment in the custody of the Bureau of Prisons of 50
percent of the low end of the applicable Sentencing Guide-
lines range.” If the court refused to apply the 50-percent
reduction, the plea agreement expressly provided that “this
Plea Agreement shall become null and void and neither
party will be bound thereto.” Inversely, if the district
court accepted the 50-percent reduction, the agreement
provided that the “defendant may not withdraw this
plea as a matter of right under Federal Rule of Criminal
Procedure 11(d).”
Lastly, the plea agreement contained a waiver of Linder’s
appellate rights. The plea agreement stated,
Defendant is also aware that 18 U.S.C. § 3742 affords
a defendant the right to appeal the sentence imposed.
Acknowledging this, defendant knowingly waives the
right to appeal or contest, under 18 U.S.C. § 3742 or
28 U.S.C. § 2255, or otherwise, his conviction and
the resulting sentence, in exchange for the concessions
made by the United States in this Plea Agreement,
including its agreement to move for a [50-percent]
downward departure.
1
Rule 11(c)(1)(C) states that
the plea agreement may specify that an attorney for the
government will . . .
(C) agree that a specific sentence or sentencing range
is the appropriate disposition of the case, or that a
particular provision of the Sentencing Guidelines, or
policy statement, or sentencing factor does or does
not apply (such a recommendation or requests binds
the court once the court accepts the plea agreement).
6 Nos. 06-4414 & 06-4415
The district court discussed the provisions of the plea
agreement, including the waiver of appeal, with Linder
at the plea hearing and ultimately accepted Linder’s plea
of guilty and the plea agreement, subject to the court’s
review of the Rule 11(c)(1)(C) portion of the agreement.
In a minute order, the district court also consolidated
Linder’s 2006 case with his 2004 case for sentencing.
After the change of plea hearing, but before sentencing,
the district court issued a series of orders concerning
the determination of Linder’s Guidelines range for the
2006 case. On November 13, 2006, the district court di-
rected the probation office to file a report examining
whether any guideline enhancement was warranted
under U.S.S.G. § 3B1.1(c), for having an aggravating or
leadership role in a criminal scheme, or U.S.S.G.
§ 2B1.1(b)(2), for the number of victims involved in the
crime, and also directed the parties to be prepared to
discuss those enhancements at sentencing. The next day,
the district court also ordered the parties to submit sen-
tencing memoranda on the issues of whether each of the
two cases constituted relevant conduct with respect to
the other, and whether the facts of a related case,
United States v. Michael J. Brdecka, No. 05 CR 50071 (N.D. Ill.
July 18, 2005), constituted additional relevant conduct. At
a telephone hearing the same day, the district court gave
the parties an opportunity to submit memoranda to
address the issues mentioned in its November 13 order.
The district court also clarified that the leadership enhance-
ment it was considering under U.S.S.G. § 3B1.1(c) was
for Linder’s role in the conduct at issue in the Brdecka case.
Michael Brdecka was prosecuted after Linder pleaded
guilty in the 2004 case, but before the sentencing on
Linder’s consolidated cases. The government began to
Nos. 06-4414 & 06-4415 7
investigate Brdecka after Linder, in a series of “proffer
letters,” admitted that he had received graft from Brdecka.
(Linder said that Brdecka had paid him “kickbacks” in
order to obtain and keep the securities trading business
of many of the union locals’ plans.) The investigation led
to the government indicting Brdecka and charging him
with providing a $9,700 kickback to Linder. Brdecka
pleaded guilty, and, at his sentencing on November 17,
2006 (which was held before the same district judge
who was presiding over Linder’s two cases), admitted
that he had given a total of $103,973 in kickbacks to Linder.
Both the government and Linder submitted memoranda
on the issues identified by the district court. In its memo-
randa, the government took the positions that the $103,973
Brdecka gave to Linder was relevant conduct for pur-
poses of Linder’s sentence and that all the individual
participants in the union locals’ pension and health and
welfare benefit plans were victims of Linder’s offenses for
purposes of U.S.S.G. § 2B1.1(b)(2). Linder, on the other
hand, argued the opposite. Both parties did agree, how-
ever, that Linder should not receive an enhancement
under U.S.S.G. § 3B1.1(c) for having an aggravating or
leadership role in the Brdecka kickback scheme.
On December 19, 2006, the district court sentenced
Linder. The district court grouped the two counts in the
2004 case together pursuant to U.S.S.G. § 3D1.2, and then
did the same for the seven counts in the 2006 case. Next,
the district court set the total offense level for the 2004
case at 14. Turning to the 2006 case, the district court
started with a base offense level of 6 under U.S.S.G.
§ 2B1.1(a)(2). It then applied five enhancements. First,
it determined that the $103,973 Brdecka gave to Linder
was relevant conduct for purposes of the Sentencing
8 Nos. 06-4414 & 06-4415
Guidelines and therefore should be added to the $6,930,155
loss figure contained in the plea agreement to yield a total
loss of over $7,000,000 and a 20-level increase in Linder’s
offense level under U.S.S.G. § 2B1.1(b)(1)(K). Next, it
determined that a two-level enhancement under U.S.S.G.
§ 3B1.1(c) applied because of Linder’s leadership role in
the kickback scheme with Brdecka. The district court then
applied a six-level enhancement under U.S.S.G.
§ 2B1.1(b)(2)(C) for an offense involving more than 250
victims because it found that each union member who
participated in the plans was a victim. Lastly, the district
court added a two-level enhancement for an abuse of a
position of trust under U.S.S.G. § 3B1.3 and a two-level
enhancement under § 2B1.1(b)(13)(A) for deriving more
than $1,000,000 as a result of the offense. The court then
subtracted three levels for acceptance of responsibility
to reach a total offense level of 35, which translated to a
Guidelines range of 168-210 months. After hearing from
both parties, the court accepted the Rule 11(c)(1)(C)
agreement and applied the 50-percent reduction. Linder
was sentenced to 84 months’ imprisonment in the 2006
case and 60 months’ imprisonment in the 2004 case,2 to run
concurrently. He appeals.
2
The district court did not explain how it got from a total
offense level of 14 (which in this case would have carried a
Guidelines range of 15-21 months) to a sentence of 60 months’
imprisonment in the 2004 case. We need not delve into that
issue, however, because Linder does not raise any specific
challenges to that sentence. Moreover, because (as we
explain below) we uphold Linder’s 84-month sentence in the
2006 case, and that sentence is concurrent with his 60-month
sentence in the 2004 case, any challenge to the sentence in the
2004 case is moot.
Nos. 06-4414 & 06-4415 9
II.
Although Linder has filed appeals from both the sen-
tences he received, in his briefs filed with this court
Linder asserts error only with respect to the sentence he
received in the 2006 case. Specifically, Linder challenges
the district court’s determination of the loss for sen-
tencing purposes, as well as its application of the two-
level enhancement for Linder’s leadership role in the
Brdecka kickback scheme and the six-level enhancement
for the number of victims. We need not address those
challenges, however, if the waiver of Linder’s right to
appeal his sentence contained in the plea agreement is
enforceable.
“We will enforce a plea agreement’s appellate waiver
if its terms are clear and unambiguous and the record
shows that the defendant knowingly and voluntarily
entered into the agreement.” United States v. Blinn, 490
F.3d 586, 588 (7th Cir. 2007). Here, the waiver of appeal
in the plea agreement could not be clearer: “defendant
knowingly waives the right to appeal or contest, under
18 U.S.C. § 3742 or 28 U.S.C. § 2255, or otherwise, his
conviction and the resulting sentence.” Moreover, there
is nothing in the record that indicates Linder involun-
tarily entered into the plea agreement. To the contrary,
the transcript of the plea hearing reveals that the dis-
trict court took pains to satisfy itself that Linder know-
ingly and voluntarily entered into the plea agreement. The
district court, among other things, placed Linder under
oath, determined that Linder was competent to proceed,
and asked Linder pointed questions about the voluntari-
ness of his decision to enter into the plea agreement.
Regarding the waiver of appeal itself, the district court
clearly explained it to Linder, and Linder acknowledged
10 Nos. 06-4414 & 06-4415
under oath that he understood it and that he agreed to it.3
3
The relevant portion of that discussion is as follows:
DISTRICT COURT: And in this Agreement, I believe that
there’s a waiver of the appeal rights and there’s 2255 rights
[that are being waived as well]?
LINDER’S ATTORNEY: That is correct.
THE COURT: All right. In the Agreement, you are giving up
your right to appeal those limited issues that could go to a
higher court, and you’re giving up your right to file
before me within one year of the time that I sentence you,
a habeas corpus motion which would essentially allege
some sort of a constitutional issue that would warrant a
vacation of your conviction.
Now, you’re giving up all rights to, after I sentence you,
to appear before anybody or to have your case looked at by
anybody else. That’s a valuable appeal right. I could make
an error somehow in my calculations of the Guidelines.
Do you understand all that?
MR. LINDER: Yes, Your Honor.
THE COURT: And you’ve talked that over with your
lawyer?
MR. LINDER: Yes.
THE COURT: And that’s what you want to do?
MR. LINDER: Yes.
THE COURT: What is he getting in return for that, Mr.
McKenzie [the attorney for the government]?
MR. MCKENZIE: Your honor, principally the United States
is making a 5K motion for a downward departure.
THE COURT: All right. Which is the 50 percent reduction.
And that’s what you wish to do; is that correct?
MR. LINDER: Yes.
Nos. 06-4414 & 06-4415 11
Nevertheless, Linder presents two arguments in an
attempt to avoid the enforcement of that provision. First,
Linder argues that the district court violated Federal
Rule of Criminal Procedure 11(c)(1) and impermissibly
became involved in the plea negotiations between the
government and Linder when it requested that the gov-
ernment provide additional information on the Brdecka
kickback scheme and the number of victims of Linder’s
criminal conduct. While the district court should take an
active role in evaluating a plea agreement, Rule 11(c)(1)
categorically prohibits the court from participating in
plea negotiations between the government and the defen-
dant’s attorney. Fed. R. Crim. P. 11(c)(1) (“The court
must not participate in [plea] discussions.”); see also United
States v. Kraus, 137 F.3d 447, 452 (7th Cir. 1998) (“The
proscription against judicial intervention [in plea negotia-
tions] has been widely construed as categorical, ad-
mit[ting] of no exceptions.” (internal quotation marks
and citations omitted) (second alteration in original)). The
plea agreement in this case contained a preliminary
calculation of Linder’s Guidelines range. According to
Linder, the district court impermissibly inserted itself
into the plea negotiations when it asked for supple-
mental briefing on issues relating to the Brdecka kickback
scheme, as well as to the number of victims, and then,
based on those additional facts, determined a Guidelines
range more than twice as high as the one contained in the
plea agreement.
Since Linder did not move to withdraw his guilty plea
in the district court, we review Linder’s allegations that
12 Nos. 06-4414 & 06-4415
the district court violated Rule 11 for plain error.4 United
States v. Vonn, 535 U.S. 55, 59 (2002). If the district court
had violated Rule 11, then Linder might be in a position
to have his plea vacated, which would mean that the
waiver of appeal in the plea agreement would not matter.
See Kraus, 137 F.3d at 458; see also United States v. Miles,
10 F.3d 1135, 1142 (5th Cir. 1993) (“[A] defendant who has
pled guilty after the judge has participated in plea dis-
cussions should be allowed to replead.”). But there was
no violation of Rule 11 here. The district court did not
impermissibly insert itself into the plea negotiations
because it accepted the plea agreement that was placed
before it. In other words, Linder got all that he bargained
for in the plea agreement: the 50-percent reduction
from the low end of the Guidelines range as calculated
by the district court. The plea agreement stated that:
this Plea Agreement is governed, in part, by Federal
Rule of Criminal Procedure 11(c)(1)(C). That is, the
parties have agreed that the sentence imposed by the
court shall include a term of imprisonment in the
custody of the Bureau of Prisons of 50 percent of the
low end of the applicable Sentencing Guidelines range.
Federal Rule of Criminal Procedure 11(c)(1)(C) allows
parties to agree to a specific sentence. See, e.g., United
States v. Weathington, 507 F.3d 1068, 1070 (7th Cir. 2007). If
the court decides to accept the plea agreement, Rule
4
In his briefs to this Court, Linder requested only that his
sentence be vacated. At oral argument, however, Linder’s
counsel represented that Linder was seeking to have the
plea agreement vacated. We need not determine whether
Linder waived his right to seek such relief because his Rule 11
arguments fail on the merits.
Nos. 06-4414 & 06-4415 13
11(c)(1)(C) provides that the court is bound to the sen-
tence agreed to by the parties pursuant to that rule.
United States v. Paulus, 419 F.3d 693, 696 (7th Cir. 2005)
(noting that an agreement pursuant to Rule 11(c)(1)(C)
“bind[s] the court to the recommended sentence once it
accepts the plea agreement”). Here, the agreed-to sen-
tence under Rule 11(c)(1)(C) was 50 percent of the low end
of the applicable Guidelines range. Although the district
judge deferred the decision on this portion of the agree-
ment at the plea hearing (as he was entitled to do under
Rule 11(c)(3)(A)), he ultimately accepted the agreement at
sentencing and gave Linder the 50-percent reduction. Thus,
Linder got the benefit of his bargain.5
Linder’s Rule 11 argument presumes that the plea
agreement’s preliminary calculation of his sentencing
range was binding on the district court, so that, when
the district court determined a range much higher than
the one contained in the plea agreement, it violated the
5
United States v. O’Neill, 437 F.3d 654 (7th Cir. 2006), upon
which Linder principally relies, does not help Linder. In
O’Neill, the district court rejected the original plea agreement
because it disagreed with the sentence negotiated pursuant to
Rule 11(e)(1)(C), the predecessor to Rule 11(c)(1)(C), of 124
months. O’Neill, 437 F.3d at 655-56. Thus, questions about
the district court’s involvement in the plea negotiations arose
when, based on the district court’s comments after rejecting
the initial plea agreement, the parties came back with another
Rule 11(c)(1)(C) agreement that allowed for a substantially
higher sentence. Id. at 656-57. In contrast, the district court in
this case accepted the plea agreement presented to it by the
parties, and there is no evidence on the record that the district
court participated in any way in the fashioning of that agree-
ment.
14 Nos. 06-4414 & 06-4415
plea agreement. But that is not supported by what the
agreement says. Nowhere in the agreement does it say
that the district court has to accept the Guidelines range
contained in the plea. Rather, the agreement makes clear
that the Guidelines calculations are “preliminary in
nature,” that the “court ultimately determines the facts
and law relevant to sentencing,” that the “court’s deter-
minations govern the final sentencing guidelines calcula-
tion,” that the “validity of this Agreement is not contingent
upon . . . the court’s concurrence” with the calculations
in the agreement, and that, other than the 50-percent
reduction, “the parties have agreed that the court remains
free to impose the sentence it deems appropriate.”
Linder cannot now claim ignorance of those provisions,
either, because the district court made it abundantly
clear to him at the plea hearing that the court’s guidelines
calculations, and not those found in the plea agreement,
would govern his sentence. At four separate points before
Linder pleaded guilty, the district judge explained to
Linder that, under the plea agreement, the Guidelines
calculations were the province of the court and not
covered by the Rule 11(c)(1)(C) agreement. After each
time, Linder stated under oath that he understood:
ATTORNEY FOR THE GOVERNMENT: The agree-
ment is that the court impose its incarceration aspect at
50 percent off of the low end, which would result in a
39-month sentence.
THE COURT: All right. That’s if I calculate the Guide-
lines the same way you people have calculated.
ATTORNEY FOR THE GOVERNMENT: That’s cor-
rect, Judge.
Nos. 06-4414 & 06-4415 15
THE COURT: You understand that I could calculate
them differently, and it could work to your benefit as
it could work to your detriment. Mr. Loeb, you under-
stand that?
LINDER’S ATTORNEY: Yes, Judge.
THE COURT: And you understand that?
MR. LINDER: Yes, Your Honor.
The district judge stressed it a second time, and Linder
again stated that he understood:
THE COURT: This Plea Agreement is governed by
Rule[ ] 11(c)(1)(C), and I have not read that provi-
sion when I had been looking over the Plea Agree-
ment, but that provision is one that provides that you
and the Government agree upon a certain sentence
in the case, and you heard what the Government said,
it’s—after the Guidelines are calculated, and the
Guidelines would be calculated by me, even though
your lawyer and the Government lawyer have calcu-
lated them, I still have to determine those. And that
based upon my calculation, you would be sentenced
to 50 percent of the low end of the Guideline range. Is
that your understanding?
MR. LINDER: Yes, your Honor.
And again:
THE COURT: But I want you to understand, again,
that I have to determine the Guidelines which is the
premise for getting at the 50 percent reduction. Do you
understand that?
MR. LINDER: Yes, Your Honor.
16 Nos. 06-4414 & 06-4415
THE COURT: Do you have any questions about the
Plea Agreement at this point?
MR. LINDER: No, Your Honor.
And again:
THE COURT: I’ve already informed you, and I’m
just going to briefly tell you again that under our
sentencing procedures in Federal Court, we’re gov-
erned by Guidelines, and I calculate what those are. . . .
[I]n this case, you have a Plea Agreement which, as
I’ve told you, is contingent upon my calculations of
the Guidelines.
Do you understand how I would arrive at a sentence?
MR. LINDER: Yes, Your Honor.
Linder’s representations at the plea hearing are presumed
true, and we have been given no reason to doubt them.
Weathington, 507 F.3d at 1072. In any event, Linder’s claim
that the objectively careful listener would have been
tricked into thinking that he was going to receive a sen-
tence based on the Guidelines range contained in the
plea rings more than a little hollow. Of course, Linder
could have negotiated under Rule 11(c)(1)(C) for a
specific Guidelines calculation or a specific term of impris-
onment, rather than for a sentence that was half of the low
end of the Guidelines range as determined by the court.
But Linder did not. Having accepted the plea agreement,
the district court was acting consistent with the agree-
ment’s terms when it determined that a much higher
Guidelines range than the one contained in the plea
agreement applied. Thus, Linder’s Rule 11 argument has
no merit and does not help him avoid the waiver of appeal
contained in the plea agreement.
Nos. 06-4414 & 06-4415 17
Linder’s second argument for sidestepping the waiver of
appeal is a variant of the first and can quickly be dis-
missed. Linder asserts in his reply brief that the govern-
ment breached the plea agreement by advocating for the
six-level enhancement under U.S.S.G. § 2B1.1(b)(2)(C) for
250 or more victims, along with an 86-month sentence.6
That argument presupposes that the government had
agreed to argue in favor of the Guidelines range contained
in the plea agreement. While Federal Rules of Criminal
Procedure 11(c)(1)(B)7 and (C) certainly allow for that
type of an agreement, the parties’ agreement did not
include such a provision. Accordingly, the government
did not breach the plea agreement.
Linder may understandably be disappointed by the
sentence the district court chose to mete out, a sentence
6
Linder also argues that the government breached the plea
agreement by using Linder’s proffer statements about Brdecka
to enhance his sentence, since the district court added the
$103,973 that Brdecka gave Linder in kickbacks to the amount
of loss. But that is not correct. Linder’s proffer statements
were not necessary because Brdecka admitted under oath at
his guilty plea that he had given Linder the $103,973 in kick-
backs.
7
That rule states:
[T]he plea agreement may specify that an attorney for the
government will . . .
(B) recommend, or agree not to oppose the defendant’s
request, that a particular sentence or sentencing
range is appropriate or that a particular provision of
the Sentencing Guidelines, or policy statement, or
sentencing factor does or does not apply (such a recom-
mendation or request does not bind the court) . . . .
18 Nos. 06-4414 & 06-4415
that was considerably higher than the tentative sentence set
forth in the plea agreement. But disappointment is not
enough to let Linder renege on a plea agreement that was
clearly explained to him at the time he entered into it
and that has been carried out consistent with its terms.
Because we find that Linder has waived his right to appeal
the sentence he received in the 2006 case, we need not
address Linder’s other challenges to that sentence.
III.
Although Linder filed a notice of appeal in the 2004 case,
Linder does not challenge the 60-month sentence
he received. Accordingly, we AFFIRM in No. 06-4414.
While Linder does challenge the 84-month sentence he
received in the 2006 case, he knowingly and voluntarily
waived his right to appeal that sentence. Because neither
the district court nor the government violated the terms
of the plea agreement, Linder’s waiver stands. Accord-
ingly, we enforce the agreed-to waiver of appeal and
DISMISS in No. 06-4415.
USCA-02-C-0072—6-19-08