NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued February 15, 2011
Decided April 18, 2011
Before
ILANA DIAMOND ROVNER, Circuit Judge
DIANE P. WOOD, Circuit Judge
TERENCE T. EVANS, Circuit Judge
No. 10‐3532
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Northern District of Indiana,
South Bend Division.
v.
No. 3:10cr51‐001
KEVIN L. HITE,
Defendant‐Appellant. Jon E. DeGuilio,
Judge.
O R D E R
As he was strolling through a neighborhood in Mishawaka, Indiana, convicted felon
Kevin Hite hatched a plan to commit yet another crime. He chose a house at random, hurled
a brick through a window to gain entry, and made off with roughly $8,000 worth of jewelry
and a .32 caliber Smith & Wesson revolver. But the police caught up with him a few minutes
later and, after a short chase, took him into custody.
Hite pleaded guilty to possession of a firearm by a felon, see
18 U.S.C. § 922(g)(1),
and possession of a stolen firearm, see
id. § 922(j). Because he already had three convictions
for violent felonies, Hite was subject to the Armed Career Criminal Act, which ordinarily
mandates a prison term of at least 15 years. See id. § 924(e). A district court may sentence
below that statutory threshold, however, if the government has moved for a lower term “to
No. 10‐3532 Page 2
reflect a defendant’s substantial assistance in the investigation or prosecution of another
person who has committed an offense.” Id. § 3553(e). And at Hite’s change‐of‐plea hearing,
the prosecutor had made an oral promise to give him “the opportunity to proffer and give
whatever information he has regarding criminal activities” in exchange for consideration of
a motion under § 3553(e).
By all accounts Hite made a good‐faith effort to tell the government all he knew
about the criminal underworld. But as it turned out, he did not know very much. The
government was willing to characterize his assistance as “substantial” and thus filed a
motion under § 3553(e). Yet at the same time the prosecutor was explicit in saying that Hite
was able to do little more than talk about his own crimes:
Mr. Hite did not give any testimony in a grand jury proceeding or other court
proceeding. He didn’t make any calls that were recorded with persons
participating in crimes. He didn’t make any controlled transactions or buys,
as some conspirators do, and he didn’t really give any information other than
the crimes he, himself, was personally involved with.
And even that information, the prosecutor continued, was “somewhat sketchy and dated.”
The government’s motion permitted the district court to sentence Hite below the statutory
minimum, but the prosecutor recommended a prison term of 188 months, the low end of the
guidelines range.
At sentencing Hite’s lawyer vaguely suggested that, by choosing this course, the
government might have breached its oral agreement with his client. He sought clarification
“whether the government is moving for relief from the 15‐year mandatory minimum, or
whether they are simply permitting the court to go below the mandatory minimum if the
court so desires.” The prosecutor responded that, in fact, he had moved for relief from the
mandatory minimum sentence by relying on § 3553(e) to give the district court the authority
to sentence below that threshold. But given Hite’s lackluster assistance, the prosecutor
continued, the district court ought not dip below the 180‐month minimum. “So with that
explanation from the government,” the court asked Hite’s lawyer, “are you suggesting that
that is something different from what the government had represented to you or promised
to you at the time Mr. Hite made his change of plea?” “No,” Hite’s lawyer acknowledged.
In an abundance of caution, the court summed up its understanding of the agreement to
make sure that the parties were on the same page: “So you are satisfied that, so long as the
court understands that it has the authority to depart below the mandatory minimum of 180
months based on the government’s substantial‐assistance motion, based on that, you are not
suggesting that the government has breached any promise or representation it made at the
No. 10‐3532 Page 3
time of the change of plea; is that correct?” “That’s correct,” Hite’s lawyer assured the court.
And so the hearing proceeded. After considering the sentencing factors laid out in
18 U.S.C.
§ 3553(a), as well as the government’s representation of Hite’s assistance, the court
sentenced him to the statutory minimum.
On appeal Hite argues that, by refusing to recommend that the district court
sentence him below the statutory minimum, the government breached the plea agreement.
Hite’s problem, of course, is that he waived this contention when he conceded to the district
court—not once but twice—that the government had not breached its agreement. See United
States v. Knox,
624 F.3d 865, 875 (7th Cir. 2010); United States v. Venturella,
585 F.3d 1013,
1018‐19 (7th Cir. 2009), cert. denied,
130 S. Ct. 1547 (2010); United States v. Kincaid,
571 F.3d
648, 654 (7th Cir. 2009). We commend the district judge for his deliberate approach to the
concerns Hite raised about the scope of the parties’ agreement. Thanks to the judge’s
vigilance, any confusion about what the government had agreed to do was cleared up to
Hite’s satisfaction at the sentencing hearing, and we reject Hite’s efforts to muddy the
waters again on appeal.
AFFIRMED.
