In the

United States Court of Appeals
              For the Seventh Circuit

No. 09-2053

U NITED STATES OF A MERICA,
                                                Plaintiff-Appellee,
                                v.

D EWAYNE E UGENE W HITE,
                                            Defendant-Appellant.


             Appeal from the United States District Court
      for the Northern District of Indiana, Hammond Division.
          No. 2:08-CR-00003-JTM—James T. Moody, Judge.



     A RGUED JANUARY 15, 2010—D ECIDED M ARCH 5, 2010




 Before W OOD , E VANS, and SYKES, Circuit Judges.
  E VANS, Circuit Judge. Pursuant to a written plea agree-
ment with the government, Dewayne White pled guilty
to one count of distributing crack cocaine. After the plea
was accepted by the judge, but before sentencing, both
parties learned that White’s criminal history made him
ineligible for a “safety valve” reduction, which, in turn,
negated the practical effect of the two other reductions
the government had agreed to support. Upon learning
2                                                No. 09-2053

this news, White filed a motion seeking to withdraw his
plea on the basis of this “mutual mistake.” The govern-
ment opposed the motion, arguing that the plea should
stand because the “mutual mistake” did not affect the
essential terms of the agreement and because White
knew that the safety valve reduction might not apply.
The district judge sympathized with White but denied
his request. White now appeals.
  Back in December 2007, DEA agent Antonio Smith
was working undercover with a confidential informant
to make a controlled purchase of crack cocaine. Smith
and the informant went to Quintin Lee’s residence in
Hammond, Indiana, to make the purchase. Lee then
telephoned White, who said that he would bring the
crack to Lee. White then called his codefendant, Anthony
Moton, who agreed to cook up the crack and have it
available. White and Moton drove to Lee’s house
together and parked behind Smith’s vehicle. Lee entered
Moton’s vehicle, and Moton handed him 51.9 grams of
crack cocaine. Lee returned to Smith’s vehicle, gave
Smith the drugs, and obtained $1,500 of buy money from
Smith. Lee gave Moton and White $1,300 of the buy
money before returning to his house. After Moton and
White drove away, the Hammond police performed a
traffic stop. White jumped out of the moving car and
fled on foot but was eventually apprehended. A digital
scale was found in his possession.
  Shortly thereafter, White was indicted on one count of
knowingly and intentionally distributing fifty or more
grams of crack cocaine, in violation of 21 U.S.C. § 841(a)(1).
No. 09-2053                                                  3

A few months later, White reached a plea agreement
with the government. The plea agreement outlined the
various rights White would be waiving by pleading
guilty, including the right to request documents relating
to his case from the government and the right to
appeal1 his conviction or sentence. The agreement also
detailed the government’s promises as follows:
    C. The United States of America and I have also
       entered into the following agreements which are
       not binding upon the Court, and I understand
       that if the Court does not follow these agreements
       I will not be allowed to withdraw my guilty plea;
        a.    In recognition of my acceptance of responsibil-
              ity for my offense conduct, I am entitled to a
              two point and, if eligible, an additional one
              point reduction in offense level for acceptance
              of responsibility; however, the government is
              not obligated to recommend I receive the ac-
              ceptance of responsibility adjustment if I deny
              my involvement in the offense, give con-
              flicting statements of my involvement, or en-
              gage in additional criminal conduct including
              any personal use of controlled substances;
        b. The United States of America and I agree that
           I am responsible for between 50 and 150 net
           grams of crack;


1
  To the extent that White’s mutual mistake argument, if
successful, would result in setting aside the plea agreement as
a whole, we entertain it despite the appeal waiver. See United
States v. Cieslowski, 

, 361-62 (7th Cir. 2005).
4                                                 No. 09-2053

       c.   The United States of America and I agree that
            if my criminal history qualifies me for safety valve
            treatment, and if I satisfy the provision of the
            safety valve statute pertaining to providing
            information to the government, then the gov-
            ernment will recommend that I am eligible
            for a two-level reduction under the U.S. Sen-
            tencing Guidelines pursuant to sections
            2D1.1(b)(9) and 5C1.2(a) and 18 U.S.C. section
            3553(f);
       d. The United States of America and I agree that
          I was a minor participant in the charged crimi-
          nal activity and that I am eligible for a two-
          level reduction under the U.S. Sentencing
          Guidelines pursuant to section 3B1.2(b);
       e.   The United States of America recommends that
            the Court should impose a sentence upon me
            equal to the minimum of the applicable guide-
            line range[.]
(Emphasis added.)
  “Safety valve” treatment was the key to avoiding the 10-
year mandatory minimum sentence for White’s crime.
With the additional reductions for “acceptance of respon-
sibility” and being a “minor participant,” White could
have received a sentence as low as 46 months. Despite
the government’s promises, the plea agreement also
noted that the possible penalty that could be imposed
upon White was a mandatory minimum of 10 years
imprisonment and that White’s actual sentence would
be determined by the court after an investigation by
No. 09-2053                                             5

the U.S. Probation Office and consideration of the
U.S. Sentencing Guidelines.
  At his plea hearing, the district judge questioned
White regarding his understanding of the agreement.
When asked when he last reviewed the plea agreement
with his lawyer, White replied, “Just before the hearing,
sir.” He also agreed that the agreement was “[p]retty
fresh” in his mind. White responded “Ten years” when
asked “What’s your understanding of the mandatory
minimum term of imprisonment that you’re facing for
this crime, the lowest point?” The judge and White
also specifically discussed the safety valve reduction
as follows:
   Q. You and the Government have also agreed that
      the Government will make a nonbinding recom-
      mendation at sentencing that you, if you qualify,
      receive the benefit of what’s called a safety
      valve; is that right?
   A. Yes, sir.
   Q. And if you do receive that, as I understand it,
      that would take him out of the mandatory
      minimum ten-year term of imprisonment?
       [White’s counsel]: That’s correct, Your Honor.
   Q. And you understand that?
   A. Yes, sir.
(Emphasis added.) White also acknowledged that the
judge was “not going to be able to determine the advisory
guideline sentence for [White] until after a presentence
6                                               No. 09-2053

report has been completed.” The court eventually
accepted White’s guilty plea, with both parties apparently
believing that he would be eligible for safety valve treat-
ment.2
  A few months later, the probation office released its
presentence report. The report indicated that White had
been convicted of two misdemeanors for marijuana
possession, giving him two criminal history points. These
criminal history points made White ineligible for
safety valve treatment, which, in turn, prevented the
two additional reductions the government had agreed to
support from having any practical effect. As a result,
White’s sentencing range was 120 to 135 months.
  Upon seeing the report, White moved to withdraw his
guilty plea. He argued that the parties made a “mutual
mistake” that his criminal history score would qualify
him for safety valve treatment. White also contended
that, because no one explained to him that his failure to
qualify for safety valve treatment would also render the
other reductions ineffective, he did not enter his plea
“knowingly and intelligently.” The district judge, how-
ever, found that the “mutual mistake” did not amount to
a “fair and just reason” to invalidate the guilty plea and



2
  Indeed, at the plea hearing, the district judge asked the
government’s counsel if she had reviewed White’s criminal
history, and she responded in the affirmative. We are unclear
how the mistake was made, but we trust that the govern-
ment does not go around promising to recommend reductions
that it knows will not be available.
No. 09-2053                                                7

that the plea was “knowingly and intelligently” made. The
court sentenced White to the mandatory minimum of
120 months imprisonment.
  We review the district court’s denial of White’s motion
to withdraw his guilty plea for an abuse of discretion.
United States v. Silva, 

, 414-15 (7th Cir. 1997).
After a guilty plea is accepted but before sentencing,
a defendant may withdraw his plea upon showing a
“fair and just reason” for doing so. Fed. R. Crim. P.
11(d)(2)(B). But if (as here) the district court conducted
a thorough Rule 11 colloquy, the defendant seeking
withdrawal faces an “uphill battle.” United States v.
Bennett, 

, 1099 (7th Cir. 2003).
  Because plea agreements are governed by ordinary
contract principles, a theory of mutual mistake may
provide a basis for invalidating an agreement. United
States v. Barnes, 

, 938 (7th Cir. 1996). To
provide such a basis, however, the mutual mistake
must affect the “essential parameters” of the guilty
plea, such as “[t]he nature of the charge to which the
defendant pleads, the factual basis for the plea and the
limits of the district court’s sentencing authority . . . .”
Id.; see also 

(“[T]he mistake
of both parties must go to ‘a basic assumption on which
the contract was made [which] has a material effect on
the agreed exchange of performances.’ ”) (citing Restate-
ment Second of Contracts § 152(1)). Critically, “[t]he
precise nature of the punishment that will be imposed
after a plea is effected is not always an essential term of
the plea agreement,” although it can be, if “the guilty plea
8                                                 No. 09-2053

is exchanged for the imposition of a specific sentence . . . .”

; see Fed. R. Crim. P. 11(c)(1)(C).
  The mutual mistake here led both parties to believe
that White would be eligible for safety valve treatment
and, as a result, a sentence below the statutory minimum
could be imposed. This incorrect estimation does not
affect the essential terms of White’s plea, however, because
it was not exchanged for the imposition of a specific
sentence. Rather, the essential parameters of the agree-
ment were that White would plead guilty to the one
count, give up his right to request records from the gov-
ernment and his right to appeal his sentence, and
receive favorable, nonbinding recommendations from
the government, including that the court impose a sen-
tence at “the minimum of the applicable guideline
range.” White does not argue that there was a mutual
mistake about (or breach of) these terms.3
  The mutual mistake also did not affect the essential
parameters of the plea because both the plea agreement
and the district court specifically addressed the contin-
gency regarding safety valve treatment. In the plea agree-
ment, White agreed that the government would recom-



3
  White does argue that there was a failure of consideration
because, “while the government received a mother lode of
benefits by virtue of its agreement with White, White re-
ceived absolutely nothing by virtue of his agreement with
the government.” As the district court found, however, the
government did not promise a specific result, and White
does not contend that the government failed to carry out its
promises.
No. 09-2053                                                9

mend that he was eligible for a two-level reduction “if
my criminal history qualifies me for safety valve treat-
ment . . . .” And during the plea hearing, the district judge
asked White if it was correct that “the Government will
make a nonbinding recommendation at sentencing that
you, if you qualify, receive the benefit of what’s called a
safety valve . . . ?” and White answered, “Yes, sir.”
Thus, the mistake was not about an essential term of
the agreement but rather about the possible sentence,
which generally does not support the withdrawal of a
guilty plea. See United States v. Bowlin, 

, 660
(7th Cir. 2008) (“We have repeatedly held that the fact
that a defendant underestimated his sentence when
entering his plea is not a fair and just reason to permit
him to withdraw that guilty plea.”) (internal quotation
marks omitted).
  White also argues that, because he was not specifically
warned that ineligibility for safety valve treatment would
render the government’s other recommendations inef-
fective, his plea was not “knowingly, voluntarily, and
intelligently” made. The district court found that the
record contradicted White’s assertion that he was
unaware of the consequences of his plea. We agree.
  A defendant may withdraw his plea if it was not entered
into knowingly, voluntarily, and intelligently “with
sufficient awareness of the relevant circumstances and
likely consequences.” See Bradshaw v. Stumpf, 

,
182-83 (2005); United States v. Wallace, 

, 366
(7th Cir. 2002). Voluntary responses made by a defendant
under oath before an examining judge, however, are
10                                             No. 09-2053

binding. United States v. Ellison, 

, 693 (7th
Cir. 1987). Accordingly, a guilty plea after a Rule 11
colloquy enjoys “a presumption of verity.” 

.
  Here, the plea agreement specifically stated that the
government would recommend a two-level reduction if
White was eligible for safety valve treatment, which
depended on his criminal history. The agreement
further noted that the possible penalty that could be
imposed was a mandatory minimum of 10 years impris-
onment and that the actual sentence would be deter-
mined by the court after an investigation by the proba-
tion office and consideration of the sentencing guidelines.
The judge followed up on these agreements at the plea
hearing, where White specifically acknowledged that
(1) the mandatory minimum term was 10 years; (2) if he
qualified, he could receive safety valve treatment, which
was the key to avoiding the mandatory minimum; and
(3) the judge could not determine the applicable advisory
guideline sentence until after the presentence report
was completed. Of course, the warnings could have
been more specific. But White cites no case law to sup-
port that, without a more thorough warning, his plea
was not “knowingly, voluntarily, and intelligently”
made. Cf. United States v. Knorr, 

, 1220 (7th
Cir. 1991) (“[T]he judge is not required to, and often
cannot, at the time the plea is tendered, inform the de-
fendant of the effects the application of the Sentencing
Guidelines will have on the sentence.”).
 Like the district court, we too sympathize with White.
But had he been allowed to withdraw his plea, a subse-
No. 09-2053                                           11

quent guilty verdict by a jury looks here like it would
have been a foregone conclusion. And then he might
have received a sentence of even more than 10 years.
Because the agreement did not promise a specific sen-
tence, and the record shows that White knew the
possible consequences of his plea, the district judge
did not abuse his discretion in denying White’s motion.
For these reasons, since we reject White’s attempt to set
aside the plea agreement, the appeal waiver stands and
we must dismiss his appeal for want of jurisdiction.
                                      A PPEAL D ISMISSED.




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