U.S.A. v. Behrman, 00-2563

• Citation: 235 F.3d 1049
• Decision Date: 22 December 2000
• Docket Number: No. 00-2563,00-2563
• Parties: (7th Cir. 2000) United States of America, Plaintiff-Appellee, v. Donald Behrman, Defendant-Appellant
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 1049

235 F.3d 1049 (7th Cir. 2000) United States of America, Plaintiff-Appellee,
v.
Donald Behrman, Defendant-Appellant. No. 00-2563 In the United States Court of Appeals For the Seventh Circuit Argued November 9, 2000
Decided December 22, 2000

Appeal from the United States District Court for the Southern District of Illinois. No. 3:99CR30042-002--William L. Beatty, Judge.

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Before Fairchild, Easterbrook, and Manion, Circuit Judges.

Easterbrook, Circuit Judge.

After pleading guilty to four counts of bank fraud, see 18 U.S.C. sec.1344, Donald Behrman was sentenced to 15 months' imprisonment plus $611,438.41 in restitution to the banks he hoodwinked. By pleading guilty Behrman waived any potential challenge to all pre-plea events, and the plea agreement adds a waiver of both appeal and collateral attack concerning the sentence, provided that the punishment is within the statutory maximum. Nonetheless Behrman has appealed, contending that the restitution is excessive.

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Paragraph 8 of the plea agreement reads:

The Defendant is aware that Title 18, United States Code, Section 3742 affords a defendant the right to appeal the sentence imposed. Acknowledging all this, the Defendant knowingly waives the right to appeal any sentence within the maximum provided in the statute(s) of conviction (or the manner in which that sentence was determined) on the grounds set forth in Title 18, United States Code, Section 3742 or on any ground whatever, in exchange for the concessions made by the United States in this plea agreement. The Defendant also waives his right to challenge his sentence or the manner in which it was determined in any collateral attack, including but not limited to a motion brought under Title 28, United States Code, Section 2255.

The "concessions made by the United States" in exchange for Behrman's plea and waiver were substantial. A stipulation of facts accompanying the plea agreement reveals that Behrman and his father Theodore defrauded five banks, over extended periods, by selling assets in which the banks had security agreements. The banks financed the family's used-car business, lending against the security of titles to the cars. Behrman sold many of the cars without repaying the borrowed money. Banks were not the only losers. Behrman's Garage and Sales, Inc., did not file corporate tax returns, or pay federal taxes, for the calendar years 1995, 1996, 1997, and 1998. Behrman himself did not file tax returns, and evaded his personal tax obligations, for 1994, 1995, 1996, 1997, and 1998. By pleading guilty Behrman avoided criminal prosecution for these tax offenses, which if pursued would have produced a sentence substantially exceeding the 15-month term he received.

Although the prosecutor has fulfilled the United States' part of the bargain, Behrman says that he need not keep his promise to refrain from appealing because he seeks to present a constitutional argument in support of reversal. The restitution order, Behrman contends, violates the due process clause of the fifth amendment because it is inadequately supported by the facts and because the basis of the restitution order was not established to a jury's satisfaction beyond a reasonable doubt. See Apprendi v. New Jersey, 120 S. Ct. 2348 (2000). Behrman points to cases saying that particular plea agreements do not waive constitutional arguments. E.g., Jones v. United States, 167 F.3d 1142, 1144 (7th Cir. 1999); United States v. Woolley, 123 F.3d 627, 632 (7th Cir. 1997); United States v. Schmidt, 47 F.3d 188, 190 (7th Cir. 1995). Some constitutional theories--particularly claims that the plea agreement was involuntary or the result of ineffective assistance of counsel--concern the validity of the plea agreement and thus would knock out the waiver of appeal along with the rest of the promises; all terms stand or fall together. United States v. Wenger, 58 F.3d 280 (7th Cir. 1995). But Behrman does not contend that his plea is invalid and does not want a trial; he seeks to retain the prosecutor's concessions while having an appeal too. Yet each side's concessions are linked to the other's; while the agreement is in force, a defendant must keep all of the promises he made. To create a general "constitutional-argument exception" to waivers in plea agreements would be to reduce the concessions defendants could obtain for their promises, because it would reduce the number of (enforceable) promises defendants could make. Because almost every argument in a criminal case may be restated in generic constitutional form (as Behrman has done), a "constitutional-argument exception" would vitiate most waivers of appeal and all waivers of collateral attack. Yet we held in Wenger, and have reiterated many times since, that voluntary waivers of appeal are valid and enforceable.

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Behrman's contention that all constitutional arguments always may be presented despite promises made in plea agreements (and no matter what the agreement says) is impossible to reconcile with cases such as Bousley v. United States, 523 U.S. 614 (1998), United States v. Broce, 488 U.S. 563 (1989), and Mabry v. Johnson, 467 U.S. 504, 508 (1984), which hold that by pleading guilty defendants waive all objections--including constitutional objections-- to their convictions. Only arguments that would nullify the plea itself survive. If a voluntary guilty plea may waive a basket full of potential constitutional objections to searches and seizures, confessions, and...