In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 22-1934
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CHARLES FEARS,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 15-cr-00756-2 — Virginia M. Kendall, Judge.
____________________
ARGUED APRIL 6, 2023 — DECIDED JUNE 22, 2023
____________________
Before FLAUM, ST. EVE, and PRYOR, Circuit Judges.
FLAUM, Circuit Judge. According to Charles Fears, the plea
agreement he signed to avoid the risk of multiple substantive
sex-trafficking convictions is invalid because he received no
benefit. Upon examination, consideration for the agreement
abounds; the government made multiple concessions, not the
least of which was permitting Fears to plead guilty to fewer
counts, carrying lower mandatory minimums, than charged
in the indictment. Since Fears’s plea agreement included an
2 No. 22-1934
appellate waiver, we dismiss his appeal for lack of jurisdic-
tion.
I. Background
Fears was charged by superseding indictment with one
count of conspiracy to commit sex trafficking under
18 U.S.C.
§ 1594(c) and four substantive counts of sex trafficking under
18 U.S.C. § 1591(a), (b)(1). The four § 1591(b)(1) counts carry
fifteen-year mandatory minimums. Instead of going to trial,
Fears pleaded guilty to a superseding information charging
him with one count of conspiracy to commit sex trafficking
under § 1594(c) and one substantive count of sex trafficking—
this time under § 1591(a), (b)(2). Section 1591(b)(2), in contrast
to (b)(1), carries a ten-year mandatory minimum.
As part of the plea agreement, Fears admitted to the fac-
tual bases of the charges, which, in short, were controlling
women and underage girls through force, fraud, and coer-
cion; requiring them to perform commercial sexual acts; and
taking almost all their profits for himself and his partner in
the sex-trafficking scheme. For its part, the government
agreed to (1) dismiss the original and superseding indict-
ments (with their additional, more severe charges) after Fears
was sentenced; (2) move for a one-point reduction for ac-
ceptance of responsibility under Sentencing Guideline
§ 3E1.1(b) if, at sentencing, the court determined Fears was el-
igible for a two-point reduction under § 3E1.1(a); and (3) in its
discretion, move under Federal Rule of Criminal Procedure
35(b) for a reduction in Fears’s sentence, provided Fears of-
fered substantial assistance in investigating or prosecuting
another person after his sentencing.
No. 22-1934 3
The plea agreement included a broad appellate waiver
through which Fears agreed to relinquish his “right to appeal
his conviction … and any part of [his] sentence[,] … including
any term of imprisonment.” The only exceptions were that
Fears could attack his conviction on the basis of “involuntari-
ness or ineffective assistance of counsel” and seek to reduce
his sentence if there were changes to the applicable law.
Over two years after Fears pleaded guilty, but before he
was sentenced, he filed a series of pro se motions to withdraw
his plea. Fears claimed his guilty plea was not knowing and
voluntary because of ineffective assistance of counsel, assert-
ing, among other things, that his attorney pressured him to
plead guilty. In a related motion to dismiss the indictment, he
also accused his sex-trafficking victims of wrongdoing, call-
ing them liars and asserting that they should be prosecuted as
co-defendants.
The district court rejected Fears’s attempt to unwind his
guilty plea. In doing so, it scrutinized the plea colloquy where
Fears affirmed, time and again, that he understood the
charges and potential sentence; that his attorneys explained
the charges and answered all his questions; and that he had
no complaints about his representation. In the end, the court
found no evidence to support Fears’s motions—just his self-
serving assertions.
Fears’s case proceeded to sentencing. The court calculated
the recommended sentence under the Sentencing Guidelines,
which was life in prison. His total offense level was forty-
eight—“off the charts” of the Guidelines, which top out at
forty-three. The government argued for a below-the-Guide-
lines sentence of thirty years, and Fears’s attorney countered
with a sentence of approximately ten years—matching the
4 No. 22-1934
mandatory minimum sentence on the § 1591(b)(2) conviction.
The court ultimately imposed a sentence of thirty years on
both the conspiracy and substantive counts, running concur-
rently.
The government did not move for the additional point re-
duction under Guideline § 3E1.1(b); at sentencing the court
found Fears was not eligible for a reduction under § 3E1.1(a)
because, in his motion to dismiss the indictment, he blamed
his victims instead of accepting responsibility. After sentenc-
ing, the indictments were dismissed on the government’s mo-
tion. However, the government never moved for a substan-
tial-assistance reduction in Fears’s sentence under Rule 35(b).
This appeal ensued.
II. Discussion
“We review de novo the enforceability of an appellate
waiver in a plea agreement.” United States v. Bridgewater,
995
F.3d 591, 594–95 (7th Cir. 2021). However, “an appellate
waiver ‘stands or falls with the rest of the bargain.’” United
States v. Sakellarion,
649 F.3d 634, 639 (7th Cir. 2011) (quoting
United States v. Whitlow,
287 F.3d 638, 640 (7th Cir. 2002)). Con-
sequently, where a defendant, like Fears, claims his plea
agreement with an appellate waiver is void for lack of consid-
eration, “our starting point is the plea agreement.” See United
States v. Kilcrease,
665 F.3d 924, 927 (7th Cir. 2012). If there was
consideration, the claim is barred by the appellate waiver.1
1 Fears did not present his lack-of-consideration argument to the dis-
trict court, so we would normally review it for plain error. United States v.
Dridi,
952 F.3d 893, 898–99 (7th Cir. 2020) (explaining that we review ar-
guments for plain error where the litigant’s failure to raise the argument
before the district court rings “more inadvertent than intentional”).
No. 22-1934 5
“[A]lthough they are unique in the sense that they are ne-
gotiated, executed, approved, and enforced in the context of
a criminal prosecution that affords the defendant a due pro-
cess right to fundamental fairness, [plea agreements] are con-
tracts nonetheless.” United States v. Smith,
759 F.3d 702, 706
(7th Cir. 2014). To be enforceable, there must be consideration.
See Kilcrease,
665 F.3d at 928. Consideration need not “be bro-
ken down clause-by-clause, with each promise matched
against a mutual and ‘similar’ promise by the other side”
though; courts examine “the overall consideration given for
the plea.” United States v. Hare,
269 F.3d 859, 861–62 (7th Cir.
2001).
The government argues that it made multiple valuable
concessions sufficient to support the plea agreement: It per-
mitted Fears to plead guilty to fewer, lesser charges; dis-
missed the remaining, more severe charges; and gave Fears
the opportunity to receive a reduced sentence through both a
one-point reduction for acceptance of responsibility under
Guideline § 3E1.1(b) and a Rule 35(b) motion for substantial
assistance following his sentencing.
To begin with, allowing a defendant to plead guilty to less
severe charges is a benefit that supports the plea agreement,
especially where the government dismisses the more severe
charges. See id. at 861. The superseding information to which
Fears pleaded guilty dropped all four § 1591(b)(1) charges in
However, the government’s failure to argue forfeiture on appeal means
we can nevertheless review the argument de novo. See United States v. Grif-
fith,
344 F.3d 714, 718 (7th Cir. 2003); United States v. Rahman,
805 F.3d 822,
831 (7th Cir. 2015).
6 No. 22-1934
the indictment—carrying fifteen-year mandatory mini-
mums—in exchange for a single § 1591(b)(2) charge—carry-
ing a ten-year mandatory minimum. Nonetheless, Fears
presses that, in his particular circumstance, the government’s
concession was illusory because it afforded no ultimate bene-
fit: His total offense level even after the plea to the lesser
charge was still “off the charts” such that the Guidelines rec-
ommended life in prison.
We disagree. Pleading guilty to the superseding infor-
mation gave Fears a tangible benefit. His attorney was able
to—and did—argue at sentencing for a ten-year sentence,
matching the mandatory minimum for the § 1591(b)(2) count.
Absent that concession, the lowest sentence he could have ad-
vocated for was fifteen years, the mandatory minimum under
§ 1591(b)(1).
Fears argues that because the “[G]uidelines were life [in
prison]” there was “no chance whatsoever that” the ten-year
mandatory minimum mattered. But the Sentencing Guide-
lines are advisory, not binding, and in any event, the district
court did not follow them. While the thirty-year sentence the
court imposed was higher than the one Fears’s attorney advo-
cated for, it was also substantially lower than the life sentence
that the Guidelines recommended. At bottom, there is no ba-
sis to conclude that Fears’s ability to argue for a ten-year sen-
tence was illusory.
Fears also deems illusory the government’s conditional
promise to move for a reduction in his sentence under Guide-
line § 3E1.1(b) and Rule 35(b). But the fact that the govern-
ment did not do so is not evidence of an illusory promise. It is
evidence that conditions triggering the government’s obliga-
tions did not occur. The court did not find Fears qualified for
No. 22-1934 7
the two-point reduction under § 3E1.1(a) in the first place be-
cause he had not accepted responsibility for his actions (and
instead blamed his victims), and Fears did not provide sub-
stantial assistance in investigating or prosecuting another per-
son, as required under Rule 35(b). The government’s prom-
ises are not rendered illusory simply because those conditions
never came to pass—particularly since satisfaction of the con-
ditions was at least partially in Fears’s control. Cf. United
States v. Thomas,
639 F.3d 786, 788 (7th Cir. 2011) (enforcing an
appellate waiver because the government’s promise “to rec-
ommend a downward adjustment for acceptance of responsi-
bility” constituted consideration even though the government
did not follow through after the defendant “offer[ed] an im-
plausible denial of the facts of his crime”); United States v. Hal-
lahan,
756 F.3d 962, 973 (7th Cir. 2014) (holding the govern-
ment did not need to recommend leniency, as promised in
plea agreement, where defendants “failed to accept responsi-
bility for their crimes” by fleeing the state “to avoid sentenc-
ing” because “[t]he law does not require the government to
make a nonsensical recommendation”).
Relatedly, the government’s promise to consider moving
under Rule 35(b) for a reduction in Fears’s sentence is also not
illusory simply because the government had discretion over
whether to file a substantial-assistance motion. It is true that
“[w]ords of promise which by their terms make performance
entirely optional with the ‘promisor’ do not constitute a
promise.” Restatement (Second) of Contracts § 77 cmt. a
(1981). But just because the thing of value (here, the potential
for the government to file a Rule 35(b) motion) is uncertain
does not make it illusory consideration.
8 No. 22-1934
We reached that conclusion in very similar circumstances
in Kilcrease,
665 F.3d at 927–28. There we evaluated whether
“the government’s promise to consider moving for a reduced
sentence” (under
18 U.S.C. § 3553(e)) was a benefit constitut-
ing consideration for Kilcrease’s plea agreement and appel-
late waiver.
Id. While the government promised to consider
moving for a reduction if Kilcrease offered “substantial assis-
tance in the investigation or prosecution of other criminal of-
fenses,” ultimately it declined to make the motion because
Kilcrease’s “assistance had not led to any arrests or charges.”
Id. at 926–27. Although there is “prosecutorial discretion in-
herent in evaluating and deciding whether and how to re-
ward a defendant’s cooperation,” we held it does not “render
a plea agreement invalid.”
Id. at 928. This logic applies equally
to Fears’s case.
Hearing Kilcrease’s death knell for his argument, Fears
calls it bad law and claims the cases it relies on do not support
its conclusion. Despite arising in different factual scenarios,
Wade v. United States,
504 U.S. 181 (1992), United States v.
Billings,
546 F.3d 472 (7th Cir. 2008), and United States v. Em-
erson,
349 F.3d 986 (7th Cir. 2003), stand for the background
principle that the government’s discretionary decision to not
file a substantial-assistance motion is still reviewable in cer-
tain circumstances. See Wade,
504 U.S. at 185–86 (“[A] defend-
ant would be entitled to relief if a prosecutor refused to file a
substantial-assistance motion … because of” “an unconstitu-
tional motive” or if the “refusal … was not rationally related
to any legitimate Government end.”); see also Billings,
546 F.3d
at 476–77; Emerson,
349 F.3d at 988.
Kilcrease then relies on a Third Circuit case to extend the
concept to plea agreements, where the defendant receives
No. 22-1934 9
greater protections by virtue of contract law principles. United
States v. Isaac,
141 F.3d 477, 481–82 (3d Cir. 1998). Isaac estab-
lishes that when the government’s commitment to consider
filing a substantial-assistance motion is memorialized in a
plea agreement, the prosecutor is bound by the contractual
obligation of good faith—even where the plea agreement
gives the government “sole discretion.”
Id. at 483–84 (explain-
ing that because plea agreements are contracts and the parties
have an implied duty of good faith and fair dealing, the gov-
ernment’s decision not to file such a motion must be “based
on an honest evaluation of the assistance provided and not on
considerations extraneous to that assistance” (citing Restate-
ment (Second) of Contracts § 205)). What Fears misappre-
hends is that the prosecutor’s “promise to evaluate in good
faith” the propriety of the substantial-assistance motion—
along with the possibility of judicial redress if the prosecutor
does not—constitutes sufficient consideration for the agree-
ment. Kilcrease,
665 F.3d at 928 (emphasis added). Because the
decision to file a substantial-assistance motion is not entirely
discretionary, the prosecutor’s promise to consider bringing a
substantial-assistance motion is not illusory.
Id.
In sum, the government offered ample consideration for
Fears’s plea. The fact that Fears never benefited from some of
the government’s conditional promises “does not render his
plea agreement unenforceable.” Thomas,
639 F.3d at 788.
III. Conclusion
For the reasons explained, we DISMISS Fears’s appeal.
