23 F.4th 753
7th Cir.2022Background
- Eric Mboule was charged with one-count conspiracy to commit wire fraud for participating in a scheme that diverted $265,193.75 from the University of Illinois; co-conspirator Patrick Guentangue handled the account and testified Mboule directed the scheme.
- Mboule signed a cooperation agreement promising complete and truthful information and a plea agreement that included (a) a potential 2-level reduction for acceptance of responsibility, (b) provisions allowing the government to withdraw benefits if Mboule failed to cooperate, and (c) a broad appellate-waiver clause (except for ineffective-assistance claims).
- Days before his change-of-plea hearing Mboule lied during a proffer to an FBI agent about his involvement; the government later rescinded its acceptance-of-responsibility recommendation and presented evidence of additional fraud at sentencing.
- Mboule moved under Fed. R. Crim. P. 11(d)(2)(B) to withdraw his guilty plea (claiming ineffective advice about an "open plea" option and seeking to void the plea because the government breached it), but the district court denied the motion without an evidentiary hearing.
- The district court sentenced Mboule to 42 months (within the Guidelines), and Mboule appealed, challenging denial of the withdrawal motion and sentencing; the government argued the appeal was barred by the appellate waiver.
Issues
| Issue | Mboule's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether the appellate waiver bars review because Mboule’s guilty plea was not knowing/voluntary | Plea not knowing: government did not disclose at change-of-plea that pre-plea lies could strip plea benefits; if plea was unknowing the waiver is unenforceable | Waiver was knowing and voluntary: plea colloquy covered waiver; Mboule lied during proffer and therefore lost the government’s promised benefits; waiver stands | Waiver valid and covers these claims; appeal dismissed |
| Whether district abused discretion in denying Rule 11(d)(2)(B) motion to withdraw plea and in sentencing adjustments | Counsel misadvised about open plea; government breached agreement and therefore entire plea (including waiver) should be voided | Motion filed after Mboule learned consequences of his lies (gamesmanship); government was entitled to withdraw recommendations due to Mboule’s breach; no fair and just reason to allow withdrawal | District did not abuse discretion; plea voluntary; government’s withdrawal of recommendations was justified; sentencing affirmed |
Key Cases Cited
- United States v. Alcala, 678 F.3d 574 (7th Cir. 2012) (framework for enforcing appellate waivers)
- United States v. Perillo, 897 F.3d 878 (7th Cir. 2018) (appeal within scope of waiver when defendant waived rights to appeal conviction and sentence)
- United States v. Kelly, 337 F.3d 897 (7th Cir. 2003) (total-circumstances test for knowing and voluntary pleas)
- United States v. Whitlow, 287 F.3d 638 (7th Cir. 2002) (waiver stands or falls with the plea agreement)
- Evans v. Meyer, 742 F.2d 371 (7th Cir. 1984) (a guilty plea need not be perfectly informed to be voluntary)
- United States v. Graf, 827 F.3d 581 (7th Cir. 2016) (motions to withdraw pleas should not reward gamesmanship)
- United States v. Quintero, 618 F.3d 746 (7th Cir. 2010) (prosecutor not always bound to recommend acceptance-of-responsibility reduction)
- United States v. Mosley, 505 F.3d 804 (8th Cir. 2007) (distinguishable case where court ordered specific performance after alleged government breach)
- United States v. Chapa, 602 F.3d 865 (7th Cir. 2010) (deference to defendant’s sworn plea-colloquy statements)