TINDER, Circuit Judge.
Nikole Sakellarion was involved in cocaine distribution in the Chicago area. To her credit, when her drug activity came to the attention of law enforcement authorities, she provided substantial assistance to the investigators to implicate other drug distributors in exchange, of course, for a favorable plea agreement. That agreement required the government to recommend, and if accepted, the court to impose a sentence about half as long as Sakellarion faced under a mandatory minimum sentencing provision. The district judge accepted the agreement, which contained a waiver of Sakellarion's right to appeal, and the agreed-upon sentence was imposed. Nonetheless, Sakellarion appeals, complaining not about the sentence she received, but rather about the fact that she did not receive an even more favorable sentence that she had hoped to receive as a result of a supplemental agreement negotiated after she pled guilty under the original plea agreement. She contends that the government acted in bad faith in not fulfilling this agreement to amend the original plea agreement. But we cannot review her complaint about the supplemental agreement because Sakellarion's original plea agreement contained a waiver of
In the summer of 2006, George Chavez asked Sakellarion to act as a cocaine sales intermediary between himself and his customer Hector "Jerry" Cruz. Chavez and Cruz had suffered a falling-out of sorts. So for the next three or four months, Chavez gave Sakellarion at least 4.5 ounces of powder cocaine about twice a week, typically from Chavez's Chicago home. Sakellarion then gave Cruz the cocaine. Sometimes Sakellarion moved 9 or 10 ounces of cocaine, occasionally buying an ounce for herself and distributing the rest to Cruz. In exchange, Cruz cooked powder cocaine into crack for Sakellarion or gave her a discounted price on his crack cocaine. Sakellarion also purchased about an ounce or a half-ounce of crack cocaine from Cruz at least twice a month for about a year. Sakellarion also purchased similar quantities of crack cocaine from Chavez about five times in 2006. Sakellarion sold the drugs to her own customers. Sakellarion admitted to distributing about 2.5 kilograms of cocaine and about 570 grams of crack cocaine.
Sakellarion was indicted on March 8, 2007, along with Chavez and five others, for conspiracy to possess with intent to distribute and to distribute 5 kilograms or more of mixtures and substances containing cocaine, and 50 grams or more of mixtures or substances containing cocaine base in the form of crack cocaine. See 21 U.S.C. §§ 846, 841(a)(1). The indictment alleged that the conspiracy centered around Chavez's "Paintball Explosion" business that served both as a front for cocaine sales and a laundry for the cash proceeds. Sakellarion began cooperating with federal drug investigators as soon as she was arrested on the federal charges, and in fact, she actually began her cooperation with law enforcement before that by working with local police officers when she was arrested by them on a cocaine charge. (Conversations she recorded with Cruz for the local police were simultaneously recorded on a Title III wiretap.) Sakellarion eventually signed a written plea agreement, binding under Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure, which, if accepted by the court, required it to impose a sentence that would be 50% less than the low end of the sentencing guidelines or the statutory minimum, whichever was greater. The agreement noted that the court's authority to impose a sentence below any mandatory minimum would arise from the government's recognition of her assistance to the investigation pursuant to U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e). The district court accepted Sakellarion's guilty plea on July 25, 2008, reserving only the question of whether the judge would also accept the parties' agreement on the sentence to be imposed. No complaint is raised about the adequacy of the guilty plea hearing, nor does Sakellarion contend that she did not understand any aspect of the terms of her plea agreement.
The Presentence Investigation Report (PSR) set Sakellarion's base offense level at 34 based on the type and amount of drugs involved in the offense, and credited her a 3-level reduction pursuant to U.S.S.G. § 3E1.1 for acceptance of responsibility. The PSR also projected Sakellarion's criminal history point total at 2 based on two prior convictions, one point for a battery conviction in 2000 and the other for a theft conviction in 2003. If both convictions counted, Sakellarion's criminal history category would be II. This was a
The parties never agreed on the safety valve but, despite the positive drug test, the government did agree to renegotiate the sentence portion of Sakellarion's plea agreement so Sakellarion would receive a 43-month sentence. This would be the same sentence she would have received if the safety valve had applied under the original plea agreement. But at the December 15, 2009, hearing, the Assistant U.S. Attorney (AUSA) reported that although the government "had agreed to a lesser sentence" of 43 months, Sakellarion tested positive again—this time for some type of opiate. The AUSA said that he would see whether this second positive changed whether the government could "go forward with an amended plea agreement," a draft of which he had already given to Sakellarion's counsel. Sakellarion again denied drug use and said she would pay to have her hair tested to prove it. The district court postponed the matter to give the AUSA an opportunity to confer with his supervisors to assess the accuracy of the drug testing procedures and to determine whether to proceed with the 43-month deal. At a March 18, 2010, hearing, the AUSA told the court that the government needed more time to determine whether there was evidence of false positives in Sakellarion's case and in general and to decide whether to "go forward with an amendment to the plea agreement."
At the continuation of the sentencing hearing on May 18, 2010, the AUSA told the court that Sakellarion tested positive a third time (this time for morphine) and "as far as we are concerned, it's over." The AUSA asserted that the testing procedures used by the Probation Office of the court were reliable and that the testing facility's employees received regular training. He also reported that due to Sakellarion's positive drug tests, the government declined to go through with any
Sakellarion's plea agreement contains the following waiver of her right to appeal:
The government seeks this provision's enforcement through the dismissal of Sakellarion's appeal. We have repeatedly held "that a voluntary and knowing waiver of an appeal is valid and must be enforced." United States v. Sines, 303 F.3d 793, 798 (7th Cir.2002); see also United States v. Woods, 581 F.3d 531, 533-34 (7th Cir.2009); United States v. Hare,
We have long held that an appellate waiver "stands or falls with the rest of the bargain." United States v. Whitlow, 287 F.3d 638, 640 (7th Cir.2002); see also Nunez v. United States, 546 F.3d 450, 454 (7th Cir.2008) (citing United States v. Wenger, 58 F.3d 280 (7th Cir.1995)). When a district court rejects a defendant's allegations that the government acted in bad faith in breaching a plea agreement, the defendant may not circumvent the agreement's otherwise valid appellate waiver by appealing the bad faith ruling. See Whitlow, 287 F.3d at 640. Stated otherwise, a mere "claim of breach" does not void a waiver because that would make all appellate waivers unenforceable as "talk is cheap." Id. Thus, because Sakellarion's plea agreement with its waiver of her appellate rights remains an enforceable agreement between herself and the government, its appellate waiver requires us to dismiss her appeal.
Even if Sakellarion succeeded in having her guilty plea set aside, see Hare, 269 F.3d at 860-61, her options for appellate review would be quite limited. If ultimately convicted, Sakellarion could have sought review of her bad faith allegation but such challenges have proven difficult, see, e.g., Wade v. United States, 504 U.S. 181, 185-86, 112 S.Ct. 1840, 118 L.Ed.2d 524 (1992) (limiting review of a refusal to file a substantial assistance motion for unconstitutional motives such as race, religion, or lack of a rational relationship to legitimate state objectives); United States v. Deberry, 576 F.3d 708, 711 (7th Cir.2009) (finding reasonable the government's refusal to file a motion to reduce based on an appellate waiver request), cert. denied, ___ U.S. ___, 130 S.Ct. 2060, 176 L.Ed.2d 416 (2010); United States v. Miller, 458 F.3d 603, 605 (7th Cir.2006) (finding the government's refusal to file a substantial assistance motion because the government did not believe the defendant was forthcoming rationally related to a government objective), although not insurmountable, see United States v. Wilson, 390 F.3d 1003,
We must also note that attempting to set aside her guilty plea would have been quite risky if somehow successful. Judicial review of decisions involving plea agreements is quite limited because of the government's significant discretion over matters constitutionally assigned to the executive branch. See, e.g., Wayte v. United States, 470 U.S. 598, 607, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985) ("[T]he Government retains `broad discretion' as to whom to prosecute." (quoting United States v. Goodwin, 457 U.S. 368, 380 n. 11, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982))); United States v. Scott, 631 F.3d 401, 406 (7th Cir.2011) (noting that prosecutorial discretion arises out of Article II, section 3 of the Constitution, which assigns the executive branch the duty to "take Care that the Laws be faithfully executed"); United States v. Christian, 342 F.3d 744, 748-49 (7th Cir.2003) (holding that judicially estopping the government from charging the appellant with a felony because his co-defendants were charged with misdemeanors for the same incident would "obliterate the usefulness of plea agreements"); Rodriguez v. Peters, 63 F.3d 546, 563 (7th Cir.1995) (refusing "to second-guess the State's Attorney's exercise of discretion in deciding not to prosecute [a cooperating co-gang member] for murder"). To challenge the denial of the supplemental agreement, Sakellarion would have to risk giving up the very favorable treatment she was given in the original plea agreement. That could be a large sacrifice with a low potential for success. (This is especially true because the district judge rejected the allegation of bad faith after considering the facts proffered to her.) But Sakellarion did not seek to withdraw from her plea or from the original plea agreement and the waiver of her right to appeal still stands.
Therefore, Sakellarion's appeal is DISMISSED.