United States v. Vernado Malone, 2016 U.S. App. LEXIS 4404

Vernado Malone pleaded guilty to mail fraud and aggravated identity theft under a written plea agreement; factual basis described “numerous instances of access device fraud” and named Modineer, WEX (Wright Express), J&C Ambulance, and Rural Metro as examples.
The plea agreement reserved to the district court the determination of sentencing guideline matters, including victim-related adjustments, after considering government input; Malone waived his right to appeal his conviction and sentence.
The government agreed to dismiss one count, stipulate $120,000 loss, and recommend an acceptance-of-responsibility reduction; the factual basis contained no stipulation limiting the number of victims.
The PSR proposed a 2-level enhancement under U.S.S.G. §2B1.1(b)(2)(A)(i) for more than ten victims; Malone objected that only Modineer and WEX suffered actual loss.
At sentencing, a police officer testified WEX reported 28 client accounts were subject to fraudulent charges; the district court declined to treat the 28 companies as victims for guideline enhancement but referenced the 28 defrauded cardholders in an upward variance.
Malone appealed despite his appellate waiver, arguing the government materially breached the plea agreement by presenting evidence of 28 victims when only four were named in the plea’s factual basis.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the government materially breached the plea agreement by presenting evidence of 28 victims when the factual basis named only four	Malone: factual basis was a stipulation limiting victims to those named, so government breached agreement by introducing evidence of 28 victims	Government: factual basis described examples and did not stipulate to number of victims; government may present evidence of additional victims at sentencing	No breach; the factual basis did not stipulate to a fixed number of victims, so appellate waiver enforced and appeal dismissed

United States v. Sakellarion, 649 F.3d 634 (7th Cir. 2011) (voluntary, knowing appellate waivers are enforceable)
United States v. Whitlow, 287 F.3d 638 (7th Cir. 2002) (prosecutorial breach can permit voiding plea agreement)
United States v. Munoz, 718 F.3d 726 (7th Cir. 2013) (de novo review of alleged plea agreement breach where no factual dispute)
United States v. Matchopatow, 259 F.3d 847 (7th Cir. 2001) (plain contractual language controls absent ambiguity)
United States v. O’Doherty, 643 F.3d 209 (7th Cir. 2011) (factual admissions do not always preclude government from arguing different sentencing facts)
United States v. Schilling, 142 F.3d 388 (7th Cir. 1998) (distinguishing factual admissions from express governmental stipulations)
United States v. Logan, 244 F.3d 553 (7th Cir. 2001) (integration clause can preclude reliance on extrinsic promises to vary plea agreement)