United States v. Linda Nulf ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-3137
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LINDA NULF,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:17-CR-00436-2 — Charles R. Norgle, Judge.
____________________
ARGUED JUNE 4, 2020 — DECIDED OCTOBER 15, 2020
____________________
Before SYKES, Chief Judge, and EASTERBROOK, Circuit
Judge. 1
SYKES, Chief Judge. Linda Nulf participated in a mortgage-
fraud scheme that caused in excess of $2 million in losses.
1 Circuit Judge Barrett was a member of the panel when this case was
submitted but did not participate in the decision and judgment. The
appeal is resolved by a quorum of the panel pursuant to 28 U.S.C.
§ 46(d).
2 No. 19-3137
She was initially indicted on three felony counts and faced
up to 30 years in prison, but the government later supersed-
ed those charges and substituted a single misdemeanor
count. Nulf pleaded guilty under a written plea agreement
that included an appeal waiver. The judge imposed a
12-month sentence, the statutory maximum.
Nulf appealed, notwithstanding the appeal waiver. She
argues that the judge interfered with her allocution, wrongly
denied credit for acceptance of responsibility, and commit-
ted other assorted mistakes at sentencing. These errors, she
contends, add up to a miscarriage of justice, making the
appeal waiver unenforceable.
This argument relies on United States v. Litos, 847 F.3d
906, 910–11 (7th Cir. 2017), but our decision in that case did
not announce a general “miscarriage of justice” exception to
the enforcement of appeal waivers. Rather, Litos fell within
an established line of cases recognizing a narrow set of
extraordinary circumstances that justify displacing an
otherwise valid appeal waiver.
Nulf’s case is far from extraordinary, so the normal rule
applies: the appeal waiver is enforceable unless the underly-
ing guilty plea was invalid. Because Nulf does not claim that
her plea was unknowing or involuntary, we enforce the
waiver and dismiss this appeal.
I. Background
Linda Nulf worked as a licensed loan originator in
Illinois. For approximately three years, she and two code-
fendants participated in a mortgage-fraud scheme in which
they submitted loan applications containing false infor-
mation about the applicant’s income and assets. Nulf pre-
No. 19-3137 3
pared and submitted the fraudulent paperwork to financial
institutions and the Department of Housing and Urban
Development (“HUD”), causing approximately $2.2 million
in losses.
A grand jury indicted Nulf on three felony charges: two
counts of bank fraud in violation of 18 U.S.C. § 1344 and one
count of making a false statement to a financial institution in
violation of 18 U.S.C. § 1014. Each of these crimes carries a
30-year maximum prison term. The government later filed a
superseding information charging Nulf with a single count
of making a false statement to HUD, a misdemeanor pun-
ishable by up to one year in prison. 18 U.S.C. § 1012.
Nulf pleaded guilty to the misdemeanor pursuant to a
written agreement in which the government agreed to
dismiss the original felony charges. The parties further
stipulated that the anticipated offense level was 23, which
when combined with Nulf’s nonexistent criminal history
would result in the one-year statutory maximum as the
recommended sentence under the Sentencing Guidelines.
The plea agreement also included an appeal waiver:
[D]efendant knowingly waives the right to ap-
peal her conviction, any pre-trial rulings by the
Court, and any part of the sentence (or the
manner in which that sentence was deter-
mined), including any term of imprisonment
and fine within the maximums provided by
law, and including any order of restitution, in
exchange for the concessions made by the
United States in this Agreement.
4 No. 19-3137
The judge confirmed Nulf’s understanding of the appeal
waiver at the change-of-plea hearing. As anticipated, the
presentence report (“PSR”) recommended an offense level of
23, which included a 3-level reduction for acceptance of
responsibility, and a criminal-history category of I. These
calculations yielded an advisory Guidelines range of 46–
57 months in prison, but the sentence was capped at the
statutory maximum of 12 months. Nulf’s only objection to
the PSR concerned a recommended condition permitting a
probation officer to visit her at work during supervised
release.
Sentencing proceeded uneventfully until Nulf’s allocu-
tion. She explained at length that the criminal case had been
financially and personally devastating for her and her family
and expressed a desire to be “a good person.” Eventually the
judge interjected, leading to the following exchange:
THE COURT: It seems to me that you have yet
to acknowledge what you did.
THE DEFENDANT: I have acknowledged.
THE COURT: What did you do?
THE DEFENDANT: I didn’t pay attention to
what was going on and allowed—I was very
sloppy about what went in, didn’t pay atten-
tion, and incorrect information went in, and
that is my responsibility.
THE COURT: What did you do?
THE DEFENDANT: I did not pay attention on
the loan applications and so there was incor-
rect information on the loan applications that
No. 19-3137 5
were processed and closed. That is my respon-
sibility.
Based on these responses, the judge determined that Nulf
had not really accepted responsibility for her crime and
removed the 3-level reduction for acceptance of responsibil-
ity from the Guidelines calculation. The new offense level
was 26, increasing the advisory Sentencing Guidelines range
to 63–78 months. This was all academic, of course; the
sentence was limited by the one-year statutory maximum.
The judge imposed the one-year sentence as contemplated
by the plea agreement.
II. Discussion
Nulf asks us to ignore her appeal waiver because the
judge interfered with her right of allocution and wrongly
deprived her of credit for accepting responsibility. She also
seeks review of several other claimed errors at sentencing.
But this case does not fit within the narrow set of circum-
stances in which we’ve recognized an equitable exception to
an otherwise enforceable appeal waiver.
As a general matter, an appeal waiver must be enforced
if its “terms are express and unambiguous, and the record
shows that the defendant knowingly and voluntarily entered
into the [plea] agreement.” United States v. Haslam, 833 F.3d
840, 844 (7th Cir. 2016) (alteration in original) (quotation
marks omitted). In other words, an appeal waiver stands or
falls with the underlying agreement and plea. If the agree-
ment and guilty plea are valid, so too is the appeal waiver.
Id. We have declined to enforce an otherwise valid appeal
waiver only in a few limited circumstances—for example,
“when the sentence exceeds the statutory maximum, when
6 No. 19-3137
the plea or court relies on a constitutionally impermissible
factor like race, or when counsel is ineffective in the negotia-
tion of the plea agreement.” Dowell v. United States, 694 F.3d
898, 902 (7th Cir. 2012).
Nulf concedes that her appeal waiver was express and
unambiguous, and that she knowingly and voluntarily
entered into it. She does not challenge the validity of her
guilty plea. That is the end of the matter. The waiver must be
enforced unless one of the narrow exceptions applies, and
Nulf does not argue—nor could she—that her case falls
within any of the exceptions we’ve just listed. She argues
instead that our decision in Litos recognized a general “mis-
carriage of justice” exception and that her case qualifies
under it.
This argument misreads Litos. That case involved a bank-
fraud scheme by three coconspirators. Two were found
guilty by a jury, but the third, Minas Litos, pleaded guilty
and waived his right to appeal. 847 F.3d at 910. The three
defendants appealed, challenging (among other things) the
judge’s imposition of approximately $900,000 in restitution,
for which the three were jointly and severally liable. We
agreed that the restitution order could not stand because the
victim, a large bank, had been reckless and therefore did
“not have clean hands.” Id. at 907–08. That ruling, of course,
lifted the restitution obligation from the defendants who
were convicted at trial. But because Litos pleaded guilty and
waived his right to appeal, he remained on the hook and
solely responsible for the entire amount. Id. at 910. In that
unusual situation, we declined to enforce the appeal waiver
and relieved Litos of his obligation to pay under the invalid
restitution order. Id. at 910–11.
No. 19-3137 7
Along the way to that holding, we noted that some cir-
cuits decline to enforce appeal waivers if doing so would
result in a “miscarriage of justice.” Id. at 910. But we did not
adopt a general miscarriage-of-justice exception for this
circuit. To the contrary, we reiterated our circuit’s longstand-
ing recognition of only a limited set of
exceptional situations in which waiver does
not foreclose appellate review—for example[,]
if an appeal waiver is part of a plea agreement
that was involuntary, or if the district court re-
lied on a constitutionally impermissible factor,
or if the defendant received ineffective assis-
tance of counsel in regard to the negotiation of
the plea agreement, or if the sentence exceeded
the statutory maximum.
Id. And we emphasized that these exceptions “are narrow.”
Id. at 911.
In short, Litos addressed a unique situation and did not
announce a new and amorphous miscarriage-of-justice
standard for setting aside an otherwise enforceable appeal
waiver. See Oliver v. United States, 951 F.3d 841, 847 (7th Cir.
2020) (explaining the limits of Litos); United States v. Carson,
855 F.3d 828, 831 (7th Cir. 2017) (same). Because Nulf’s
appeal waiver is valid and enforceable, this appeal is
DISMISSED.