United States v. Bownes, Marvis H. ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
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Nos. 03-3016, 03-3949, 04-1304, 04-1560
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MARVIS H. BOWNES,
Defendant-Appellant.
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Appeals from the United States District Court
for the Southern District of Illinois.
Nos. 02-CR-30115, 03-CR-30097—Michael J. Reagan, Judge.
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ARGUED FEBRUARY 17, 2005—DECIDED APRIL 26, 2005
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Before POSNER, RIPPLE, and MANION, Circuit Judges.
POSNER, Circuit Judge. We have consolidated for argument
and decision defendant Bownes’s appeals from his sentence
and from other orders issued by the district court. The
primary charge against him was mail fraud arising from a
“land flipping” scheme whereby he would acquire homes
in a poor area at low prices and resell them to poor people
at high prices, financing the sales by obtaining inflated
mortgage loans through the submission of false appraisals
by crooked appraisers acting in concert with him. He was
2 Nos. 03-3016, 03-3949, 04-1304, 04-1560
also charged with threatening a reporter who investigated
the scheme. He pleaded guilty to the charges in accordance
with a plea agreement (actually two agreements, but we can
ignore that detail) and was sentenced to 210 months in
prison and also ordered to pay almost $2.5 million in
restitution. His appeals raise a number of issues, including
whether he should be resentenced in the light of United
States v. Booker, 125 S. Ct. 738 (2005). But we cannot reach
that or any other issue if, as the government argues, the plea
agreement, negotiated by Bownes’s lawyer, waived Bownes’s
right of appeal.
The agreement states that “the Defendant knowingly
waives the right to appeal any sentence within the maxi-
mum provided in the statute of conviction (or the manner
in which the sentence was determined), including any order
of restitution, . . . on any ground whatever, in exchange for
the concessions made by the United States in this plea
agreement.” The exception is inapplicable because the
prison sentence was less than the maximum authorized by
the statutes under which Bownes was convicted and there
is no ceiling on restitution. But he argues that his waiver
was not knowing and intelligent because he had no reason
to anticipate the ruling in Booker. Not only did the agree-
ment predate the Supreme Court’s decision; it preceded our
decision in Booker, which the Supreme Court affirmed.
Disputes over plea agreements are usefully viewed through
the lens of contract law. E.g., United States v. Randle, 324 F.3d
550, 557-58 (7th Cir. 2003); United States v. Hare, 269 F.3d
859, 861-62 (7th Cir. 2001); United States v. Williams, 184 F.3d
666, 670-71 (7th Cir. 1999); United States v. Brunetti, 376 F.3d
93, 95-96 (2d Cir. 2004) (per curiam); United States v. Sar-Avi,
255 F.3d 1163, 1166-67 (9th Cir. 2001). A plea agreement is
a type of contract, and the principles of contract law are
highly developed, though as we shall note shortly their
Nos. 03-3016, 03-3949, 04-1304, 04-1560 3
application to plea agreements must be tempered by
recognition of limits that the Constitution places on the
criminal process, limits that have no direct counterparts in
the sphere of private contracting.
In a contract (and equally in a plea agreement) one binds
oneself to do something that someone else wants, in ex-
change for some benefit to oneself. By binding oneself one
assumes the risk of future changes in circumstances in light
of which one’s bargain may prove to have been a bad one.
That is the risk inherent in all contracts; they limit the par-
ties’ ability to take advantage of what may happen over the
period in which the contract is in effect.
The government didn’t want Bownes to appeal and was
willing to offer concessions that he and his lawyer consid-
ered adequate to induce him to forgo his right to appeal. Had
Bownes insisted on an escape hatch that would have en-
abled him to appeal if the law changed in his favor after he
was sentenced, the government would have been charier in
its concessions. Nothing in the text of the plea agreement or
in the negotiations leading up to it suggests that the parties
agreed to such an escape hatch. Since there is abundant case
law that appeal waivers worded as broadly as this one are
effective even if the law changes in favor of the defendant
after sentencing, United States v. Bradley, 400 F.3d 459, 463-66
(6th Cir. 2005); United States v. Killgo, 397 F.3d 628, 629 n. 2
(8th Cir. 2005); Garcia-Santos v. United States, 273 F.3d 506,
509 (2d Cir. 2001) (per curiam); United States v. Teeter, 257
F.3d 14, 21-23 (1st Cir. 2001); United States v. Johnson, 67 F.3d
200, 202-03 (9th Cir. 1995); United States v. Rutan, 956 F.2d
827, 829-30 (8th Cir. 1992); overruled in part on other
grounds by United States v. Andis, 333 F.3d 886, 892 n. 6 (8th
Cir. 2003) (en banc), the absence of an explicit escape clause
is compelling evidence that no escape is allowed. The gov-
ernment would have been unlikely to agree to an escape
4 Nos. 03-3016, 03-3949, 04-1304, 04-1560
hatch. With more than 12,000 federal criminal appeals every
year, hundreds or even thousands will be decided in the
interval between the signing of a plea agreement and the
exhaustion of the defendant’s appellate remedies, and some
of those decisions are likely to be interpretable as unfore-
seen legal changes favorable to the defendant—so the
escape hatch might be very large.
Bownes argues that Booker is special because it brought
about a “sea change” in the law. The identical argument was
rejected, rightly in our view, in the Bradley and Killgo cases
that we cited in the preceding paragraph. It is true that
Booker has had a tremendous impact because it has affected
many thousands of sentences, but it is no more, and indeed
less, of a “sea change” than numerous other legal innova-
tions scattered across the volumes of the United States Reports
and the Federal Reporter. And anyway a “sea change” ex-
ception to the rule that an unqualified appeal waiver is to be
enforced as written would be hopelessly vague.
It is also unnecessary given the limitations on waiver of
the right of appeal in a criminal case that are imposed by
judicial interpretations of the due process clause. United States
v. Schilling, 142 F.3d 388, 394-95 (7th Cir. 1998); United States
v. Ready, 82 F.3d 551, 556 (2d Cir. 1996); United States v.
Harvey, 791 F.2d 294, 300-01 (4th Cir. 1986). As we noted in
United States v. Josefik, 753 F.2d 585, 588 (7th Cir. 1985),
“there are limits to waiver; if the parties stipulated to trial
by 12 orangutans the defendant’s conviction would be in-
valid notwithstanding his consent, because some minimum
of civilized procedure is required by community feeling
regardless of what the defendant wants or is willing to
accept.” Thus a sentence based on constitutionally imper-
missible criteria, such as race, United States v. Hicks, 129 F.3d
376, 377 (7th Cir. 1997); United States v. Johnson, 347 F.3d 412,
414-15 (2d Cir. 2003); United States v. Marin, 961 F.2d 493,
Nos. 03-3016, 03-3949, 04-1304, 04-1560 5
496 (4th Cir. 1992), or a sentence in excess of the statutory
maximum sentence for the defendant’s crime, United States
v. Feichtinger, 105 F.3d 1188, 1190 (7th Cir. 1997); United
States v. Black, 201 F.3d 1296, 1301 (10th Cir. 2000), can be
challenged on appeal even if the defendant executed a
blanket waiver of his appeal rights. See also United States v.
Sines, 303 F.3d 793, 798 (7th Cir. 2002); United States v. Hahn,
359 F.3d 1315, 1327 (10th Cir. 2004) (en banc) (per curiam).
A particularly striking example of the divergence between
the legal principles that govern plea agreements and those
that govern ordinary contracts is that while a contracting
party is bound by the mistakes of his lawyer, however
egregious (his only remedy being a suit for malpractice), the
Constitution entitles defendants entering plea agreements
to effective assistance of counsel. United States v. Hodges, 259
F.3d 655, 659 n. 3 (7th Cir. 2001); United States v. Jemison, 237
F.3d 911, 916 n. 8 (7th Cir. 2001); United States v. Hernandez,
242 F.3d 110, 113-14 (2d Cir. 2001) (per curiam).
We need not decide precisely how deep an inroad the
cases elucidating such differences make into the contractual
model of plea bargaining. None of them bears on the
present case. Indeed, it is not even clear that defendants as
a whole would benefit from a right to rescind a plea agree-
ment on the basis of a “sea change” in law. Apart from the
fact that the government would insist on a compensating
concession, and apart from the further fact that rescission
would relieve the government from whatever concessions
it had made to obtain the agreement, United States v. Kelly,
337 F.3d 897, 901 (7th Cir. 2003); United States v. Whitlow, 287
F.3d 638, 640-41 (7th Cir. 2002); United States v. Cimino, 381
F.3d 124, 127-28 (2d Cir. 2004); United States v. Ballis, 28 F.3d
1399, 1409-10 (5th Cir. 1994); see generally United Scheiber v.
Dolby Laboratories, Inc., 293 F.3d 1014, 1022 (7th Cir. 2002);
Cox v. Zale Delaware, Inc., 239 F.3d 910, 914 (7th Cir. 2001),
6 Nos. 03-3016, 03-3949, 04-1304, 04-1560
the government would be able to rescind a plea agreement
favorable to the defendant if an intervening decision had
brought about a “sea change” in favor of the government;
what is sauce for the goose is sauce for the gander.
Bownes’s appeals are
DISMISSED.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-26-05