U.S.A. v. Hare

• Decision Date: 22 October 2001
• Docket Number: No. 00-3002,00-3002
• Parties: (7th Cir. 2001) United States of America, Plaintiff-Appellee, v. Tyrone Hare, Defendant-Appellant
• Court: U.S. Court of Appeals — Seventh Circuit

Page 859

269 F.3d 859 (7th Cir. 2001)

United States of America, Plaintiff-Appellee, v. Tyrone Hare, Defendant-Appellant.

No. 00-3002

United States Court of Appeals, Seventh Circuit

Argued October 2, 2001

Decided October 22, 2001

Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. 2:99 CR 45-02--Rudy Lozano, Judge.

Before Posner, Easterbrook, and Evans, Circuit Judges.

Easterbrook, Circuit Judge.

Charged with three federal crimes, Tyrone Hare made a deal and pleaded guilty to one; as part of the bargain the prosecutor dismissed the other two and promised to recommend a reduction of Hare's offense level if he cooperated. For his part, Hare promised among other things not to appeal from the sentence. The district judge sentenced Hare to 188 months' imprisonment after denying him any reduction for acceptance of responsibility. The judge concluded that Hare had frivolously denied responsibility for some of his deeds (including relevant conduct), a circumstance that had led the prosecutor to withdraw support for a reduction. Despite his promise not to do so, Hare filed a notice of appeal, which the United States asks us to dismiss.

A waiver of appeal is valid, and must be enforced, unless the agreement in which it is contained is annulled (for example, because involuntary). United States v. Wenger, 58 F.3d 280 (7th Cir. 1995); United States v. Jeffries, No. 00-2372 (7th Cir. Sept. 7, 2001). See also, e.g., United States v. Behrman, 235 F.3d 1049 (7th Cir. 2000); United States v. Williams, 184 F.3d 666, 668 (7th Cir. 1999); United States v. Teeter, 257 F.3d 14, 23 (1st Cir. 2001) (collecting cases). Hare did not ask the district court to set aside his plea, and even on appeal he does not seek that relief; he wants the benefits of the agreement shorn of one detriment, an outcome to which he could not be entitled. He contends that the United States did not keep its promise to recommend a lower sentence, and this might have been a basis either to set aside the agreement or to order specific performance, but he never asked the district judge for either kind of relief. Instead he stored up arguments for appeal and now launches a blunderbuss attack on the very possibility of waivers as part of plea agreements--a nonstarter given that Hare wants to leave his plea in place and accept all of its benefits, and a bad legal argument even if it were open.

Appeal is a statutory entitlement. Hare believes that "public policy" forbids waiver of entitlements created by statute. But if this is so then the rest of the plea agreement--indeed, the entire institution of plea bargaining-- is invalid, because by pleading guilty a defendant waives dozens of statutory and constitutional rights. See Bousley v. United States, 523 U.S. 614 (1998); United States v. Broce, 488 U.S. 563 (1989); Mabry v. Johnson, 467 U.S. 504, 508 (1984). See also United States v. Mezzanatto, 513 U.S. 196 (1995) (approving waivers of trial rights by a defendant who pleaded not guilty). Yet defendants are free to waive their rights, to exchange them for other things that they value more highly. They exchange jury trials for lower sentences- -and there is no reason why defendants cannot do the same with rights to appeal. An appeal requires the prosecutor's office to spend time researching the record, writing a brief, and attending oral argument. All of this time could be devoted to other prosecutions; and a promise that frees up time may induce a prosecutor to offer concessions. A defendant who values these concessions will waive his rights in order to obtain them. The process makes both society and the defendant better off. To make a given right ineligible for waiver would stifle this process and imprison the defendant in his privileges. Hare does not identify any part of the criminal process that the Supreme Court has declared off-limits to waiver, and we see no reason why the right to appeal should be the first. It is not as if Hare were consenting to have his sentence determined by majority vote of a kindergarten class. Waiver of appeal, rather, means that the final decision will be made by one Article III judge rather than three Article III judges; all substantive entitlements are unaffected.

As for the contention that the waiver is not supported by consideration because the prosecutor did not promise to forego appeal: The prosecutor dismissed two out of three counts and promised to recommend a lower sentence if certain conditions were met. That's plenty of consideration for Hare's promises--and contract law does not require consideration to be broken down clause-by-clause, with each promise matched against a mutual and "similar" promise by the other side. United States v. Guevara, 941 F.2d 1299 (4th Cir. 1991), concluded that a defendant's waiver of appeal must be matched against the prosecutor's waiver of appeal. Why the defendant's waiver of appeal can't be matched against a lower sentence the court did not explain. Guevara dismissed an appeal by the prosecutor because the defendant had waived his right to appeal. This remedy is problematic, for United States Attorneys lack any right to control appeals by the United States, through plea agreements or otherwise; that right belongs to the Solicitor General. 28 C.F.R. § 0.20(b). But the choice of remedy in Guevara is irrelevant once we reject, as we do, the idea that each of defendant's promises in a...