In the
United States Court of Appeals
For the Seventh Circuit
Nos. 09-2715 & 09-2788
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
JORGE Q UINTERO , also known as SAMUEL M UNOZ,
and C LAUDIA A NDRADE M ARTINEZ,
Defendants-Appellants.
Appeals from the United States District Court
for the Northern District of Indiana, Hammond Division.
Nos. 2:08-CR-111(1) & (2)—Rudy Lozano and James T. Moody, Judges.
A RGUED M ARCH 29, 2010—D ECIDED A UGUST 25, 2010
BeforeC UDAHY and K ANNE, Circuit Judges, and
D ARRAH, District Judge.
K ANNE, Circuit Judge. This consolidated appeal arises
from a foiled bank robbery. The robber, Jorge Quintero,
and his getaway driver and girlfriend, Claudia Martinez,
Hon. John W. Darrah, District Judge for the Northern
District of Illinois, sitting by designation.
2 Nos. 09-2715 & 09-2788
challenge their sentences. Quintero pled guilty to all
four counts in the indictment against him. Despite his
plea agreement, the government declined to recommend
a three-point reduction for acceptance of responsibility
because he perjured himself and obstructed justice.
Quintero argues, however, that a provision in his plea
agreement required the government to recommend
the reduction. Martinez was indicted on three counts
and her case proceeded to trial. She contends that an
erroneous jury instruction and an inaccurate computa-
tion of the Sentencing Guidelines made her sentence
unreasonable. We dismiss Quintero’s appeal on waiver
grounds and affirm Martinez’s conviction and sentence.
I. B ACKGROUND
On March 1, 2008, Martinez drove Quintero to the Fifth
Third Bank in Lafayette, Indiana. Martinez claims that
Quintero merely requested a ride to the bank to make a
withdrawal—which was accurate in one respect, but a
substantial understatement of what actually ensued.
Instead of parking at the bank like a typical customer,
Martinez parked her van in a Target store parking lot
adjacent to the bank. Quintero entered the bank wearing
a mask, announced that he was robbing the bank,
ordered the bank tellers to load money into his bag,
and discharged his handgun. After grabbing more than
$20,000 in cash, he fled the bank and jumped into the
backseat of Martinez’s van—carrying his mask, gun, and
the bag of cash. Shortly thereafter, Lafayette police
officers spotted the vehicle and twice attempted to pull
Nos. 09-2715 & 09-2788 3
it over before Martinez led the officers on a high-speed
chase. After crashing the van, Martinez attempted to
flee but was apprehended.
In the van, police officers found the stolen cash, the
mask worn during the robbery, and the gun fired in
the bank. On the front passenger seat, next to where
Martinez had been sitting, the officers also found a
second ski mask, a woman’s wig in a purse, and a
loaded semi-automatic handgun. Martinez was also
dressed in an insulated jumpsuit, which appeared
highly unusual given the warm weather that day. Never-
theless, Martinez claims that she was no Bonnie to
Quintero’s Clyde; rather, she asserts that she was com-
pletely unaware of the bank robbery until after the
fact, and that she fled because Quintero convinced her
that the police were pursuing her for cocaine possession.
On July 2, 2008, a grand jury indicted both Quintero
and Martinez. The indictment set forth the following
counts: (1) bank robbery by force, violence, or intimida-
tion in violation of 18 U.S.C. §§ 2113(a) and 2; (2) dis-
charge of a firearm in relation to a crime of violence
in violation of 18 U.S.C. §§ 924(c)(1), 2113(a), and 2;
(3) knowing possession of a firearm and ammunition as
an illegal alien in violation of 18 U.S.C. §§ 922(g)(5)(A),
924(a)(2), and 2. The indictment also individually charged
Quintero and Martinez, counts 4 and 5 respectively,
with unlawful entering and remaining in the United
States in violation of 8 U.S.C. § 1325(a). Quintero was
indicted on the first four counts; Martinez was indicted
on counts one, two, and five.
4 Nos. 09-2715 & 09-2788
Quintero entered into a plea agreement on December 9,
2009, agreeing to plead guilty to all counts. The initial pre-
sentence investigation report (PSR) provided a base
offense level of 20 for counts one and three. The report
also added two points because property was taken from
a financial institution, one point because the loss ex-
ceeded $10,000, and two points because Quintero reck-
lessly created a substantial risk of death or serious
bodily injury to another person when he fled from offi-
cers. It deducted three points for acceptance of responsi-
bility, resulting in a total offense level of 22 with a crim-
inal history category of I. The report recommended
a guidelines range of 41 to 51 months’ imprisonment
for counts one and three.
The probation office, however, revised the PSR on
April 26, 2009, following Martinez’s trial. The amended
report added two points to Quintero’s base offense level
for obstruction of justice because Quintero had perjured
himself at Martinez’s trial, and the revised PSR removed
the three-point reduction for acceptance of responsi-
bility. The revised PSR calculated Quintero’s total offense
level at 27, which resulted in a recommended guidelines
range of 70 to 87 months’ imprisonment. Count two
remained the same.
On June 23, 2009, the district court sentenced Quintero.
He was sentenced to 70 months’ imprisonment on each
of counts one and three, and a term of six months on
count four, all to run concurrently. Because count four
was a misdemeanor, the court determined that the sen-
tencing guidelines did not apply. See U.S.S.G. § 1B1.9. The
Nos. 09-2715 & 09-2788 5
court also sentenced Quintero to 120 months’ imprison-
ment on count two, to run consecutively with the sen-
tence imposed for the other counts.
At the conclusion of Martinez’s three-day trial and
prior to submission of the case to the jury, Martinez
objected to the district court’s jury instruction regarding
accomplice liability. Martinez claimed that the instruc-
tion presented an erroneous statement of law and, read
in conjunction with all of the final instructions, misled
the jury and prejudiced her. The district court overruled
the objection. The jury found Martinez guilty of bank
robbery and unlawfully remaining in the United States,
but not guilty of discharging a firearm.
The probation office then prepared a PSR. Martinez
objected to the report’s calculation of the guidelines
sentence because it included a seven-level enhancement
for discharge of a firearm even though she had been
acquitted of that charge. The district court sentenced
Martinez in accordance with the recommendation in
the PSR. The court gave Martinez the lowest-end sentence
for count one—121 months—and six months’ imprison-
ment for count four.
II. A NALYSIS
A. Quintero
On appeal, Quintero argues that the government
breached the terms of the plea agreement by refusing
to recommend a reduction in his sentence for acceptance
of responsibility and by recommending a two-point
6 Nos. 09-2715 & 09-2788
enhancement to the base offense level for obstruction of
justice. The district court therefore erred, he argues, by
accepting the government’s position. He also argues that
the district court erred by failing to hold an evidentiary
hearing to determine if a substantial breach of his plea
agreement occurred. In response, the government argues
that Quintero waived his right to appeal in accordance
with the plea agreement and, in any event, it did not
breach the agreement.
As an initial matter, we address the government’s
argument that Quintero waived his statutory right to
appeal. If we find that the waiver is enforceable, we
need not proceed further. We review de novo whether a
waiver of appellate review contained in a plea agree-
ment should be enforced as a matter of law. United States
v. Chapa, 602 F.3d 865, 868 (7th Cir. 2010); Jones v.
United States, 167 F.3d 1142, 1144 (7th Cir. 1999). “It is well-
settled that appellate waivers in plea agreements are
generally enforceable.” Chapa, 602 F.3d at 868; United
States v. Woods, 581 F.3d 531, 534 (7th Cir. 2009). However,
this is not an absolute rule, Chapa, 602 F.3d at 868 (citing
United States v. Mason, 343 F.3d 893, 894 (7th Cir. 2003);
we will enforce a waiver only if the disputed appeal
falls within the general ambit of the waiver, id. (citing
United States v. Vega, 241 F.3d 910, 912 (7th Cir. 2001)
(per curiam)).
A plea agreement is a contract and is therefore gov-
erned by ordinary contract law principles. United States
v. Patterson, 576 F.3d 431, 438 (7th Cir. 2009). Ac-
cordingly, an appellate waiver is generally valid if it is
Nos. 09-2715 & 09-2788 7
made knowingly and voluntarily, see United States v. Cole,
569 F.3d 774, 776 (7th Cir. 2009); United States v. Jemison,
237 F.3d 911, 917 (7th Cir. 2001); Jones, 167 F.3d at
1144, and if the language of the waiver is express and
unambiguous, Chapa, 602 F.3d at 868. On appeal, “[w]e
interpret the terms of the agreement according to
the parties’ reasonable expectations” and construe any
ambiguities in the light most favorable to Quintero.
Woods, 581 F.3d at 534 (citing Vega, 241 F.3d at 912).
We turn first to the plain language of the plea agree-
ment. In pertinent part the agreement states:
I [Quintero] understand that the law gives a con-
victed person the right to appeal the conviction
and the sentence imposed; I also understand
that no one can predict the precise sentence that
will be imposed . . . . I expressly waive my right
to appeal or to contest my conviction and my
sentence . . . to any Court on any ground . . . .
(Quintero’s App. at 11.) It is clear that Quintero expressly
waived his right to appeal, and there is nothing on the
face of the agreement that appears ambiguous in such
a way as to indicate that Quintero did not understand
the terms to which he agreed.
We also look to the plea colloquy to determine if the
district court judge properly informed the defendant
that the waiver may preclude his right to appeal. Woods,
581 F.3d at 534 (citing United States v. Woolley, 123 F.3d 627,
632 (7th Cir. 1997)). In Quintero’s case, the district court
made it clear that the plea agreement contained the
appellate waiver and that the waiver potentially barred
8 Nos. 09-2715 & 09-2788
his rights to an appeal. The district court explained, “[I]f
you wish to file an appeal . . . for the most part you
have waived the rights to an appeal by plea agreement. . . .
Do you understand?” (Quintero’s Short App. at 26.) After
Quintero responded in the affirmative, the court then
addressed Quintero’s counsel and emphasized the im-
portance of the waiver: “I would suggest to you strongly
that you . . . explain to the defendant his rights of
appeal . . . and what he has waived . . . .” (Id.) We find that
the plea agreement and plea colloquy demonstrate that
Quintero knew and understood the plea agreement.
Accordingly, Quintero made a knowing and voluntary
waiver of his right to appeal.
Quintero charges, however, that because the govern-
ment breached a mandatory provision of the plea agree-
ment, his right to appeal was revived and he is entitled
to specific performance of that provision. But Quintero
fails to recognize that it was he who breached the
plea agreement.
Although there must generally be a “meeting of the
minds” on the essential elements of a plea agreement, see
United States v. Barnes, 83 F.3d 934, 938 (7th Cir. 1996), a
prosecutor is not necessarily bound to recommend a
reduction in the sentence for acceptance of responsi-
bility, see United States v. Whitlow, 287 F.3d 638, 640 (7th
Cir. 2002) (holding that the appellate waiver was not
abrogated by defendant’s claim that the government
failed to recommend a reduction in his sentence). Al-
though the government did walk away from its recom-
mendation of a sentence reduction, Quintero’s argu-
ment turns the sequence of events on its head.
Nos. 09-2715 & 09-2788 9
It was Quintero who first broke the terms of the plea
agreement when he perjured himself in Martinez’s trial
and obstructed justice. An obstruction of justice charge
almost always necessarily militates against an ac-
ceptance of responsibility recommendation by the gov-
ernment and a sentence reduction by the district court.
Whitlow, 287 F.3d at 639. Further, the plea agreement
specifically stated that “the government is not obligated
to recommend . . . [an] acceptance of responsibility ad-
justment if [Quintero] . . . engage[s] in additional
criminal conduct . . . .” (Quintero’s App. at 10-11.)
Quintero’s own conduct caused the district court to
remove the three-point reduction for acceptance of re-
sponsibility and to enhance Quintero’s sentence by
two points for obstruction of justice.
“A waiver of appeal does not authorize a prosecutor
to dishonor his promises . . . .” Whitlow, 287 F.3d at 640.
But “[u]nless a prosecutor’s transgression is so serious
that it entitles the defendant to cancel the whole plea
agreement, a waiver of appeal must be enforced.” Id.
While we are acutely aware of the limitations of waivers
of appeal, id. at 642 (Wood, J., concurring) (“[W]e have . . .
taken care to respect the limits on [appeal] waivers.”),
“[o]nly arguments that would nullify the plea itself sur-
vive,” United States v. Behrman, 235 F.3d 1049, 1052 (7th
Cir. 2000). In other words, “a waiver stands or falls with
the plea bargain of which it is a part.” Nunez v. United
States, 546 F.3d 450, 454 (7th Cir. 2008) (concluding that
if the guilty plea stands, so does the waiver of appeal);
see also United States v. Hare, 269 F.3d 859, 861 (7th Cir.
2001).
10 Nos. 09-2715 & 09-2788
As noted earlier, Quintero knowingly and voluntarily
waived his right to appeal. The district court properly
addressed the waiver and confirmed Quintero’s under-
standing of his rights during the plea colloquy. The
fact that the prosecution declined to recommend a re-
duction following Quintero’s perjury in his co-defendant’s
trial does not negate the entire plea agreement nor the
waiver provision. See Hare, 269 F.3d at 862 (“Although
[the appellant] contends that the prosecutor broke his
promise to recommend a lower sentence, the waiver
prevents us from considering that contention . . . .”).
It would be an absurdity to allow a defendant who ob-
structs justice to gain the benefit of a plea bargain
while escaping the detriment of an appellate waiver.
As we said in United States v. Wenger, “[e]mpty promises
are worthless promises . . . . Defendants must take
the bitter with the sweet.” 58 F.3d 280, 282, 283 (7th
Cir. 1995). This particular point was addressed in Hare:
If the defendant does not keep his promises, the
prosecutor is not bound either. This is established
for broken agreements to cooperate. A defendant
who promises as part of his plea agreement to
provide truthful information or testify in some
other case, and who does not carry through, for-
feits the benefits of the agreement, and the
United States is free to reinstate dismissed charges
and continue the prosecution.
269 F.3d at 862. Quintero made his own bed by choosing
to commit perjury, no matter his alleged intentions, and
now he must lie in it. His right to appeal was properly
waived.
Nos. 09-2715 & 09-2788 11
We pause to note that even assuming arguendo that
Quintero’s right to appeal was revived, his claim none-
theless fails. Quintero lost any hope of an entitlement to
a reduction for acceptance of responsibility when he
committed perjury. Quintero argues that although he
committed perjury in Martinez’s trial, it was because he
was attempting to take all the blame for the robbery and
shield his girlfriend from any liability. He therefore
claims that his perjury was an acceptance of responsi-
bility and did not violate the terms of the plea agree-
ment. Quintero misunderstands what it means to accept
responsibility. Testifying falsely to exculpate Martinez
is detrimental to the justice process and constitutes ob-
struction of justice. United States v. Arambula, 238 F.3d
865, 870 (7th Cir. 2001). Quintero is therefore presumed
under the sentencing guidelines to have denied responsi-
bility. U.S.S.G. § 3E1.1, Application Note 4; United States
v. Larsen, 909 F.2d 1047, 1049 (7th Cir. 1990). Accordingly,
the district court did not err when it found that Quintero
was not entitled to a reduction for acceptance of responsi-
bility and was eligible for a two-point enhancement
for obstruction of justice.
The district court also did not err when it refused to
hold an evidentiary hearing because it was not neces-
sary. The district court had all the evidence before it: the
written plea agreement, the transcript of the oral plea
agreement, Martinez’s trial transcript, and the PSR. The
district court had sufficient evidence to conclude that
Quintero, not the government, breached the agreement
by perjuring himself at Martinez’s trial, and his enhance-
ment for obstruction of justice was therefore justified.
12 Nos. 09-2715 & 09-2788
B. Martinez
Martinez’s primary argument on appeal is that on the
issue of accomplice liability the district court erred by
providing instruction number twenty to the jury over
Martinez’s objection. Martinez argues that this instruc-
tion conflicted with jury instruction number nineteen,
and therefore, it was an erroneous statement of the law,
it misled the jury, and it ultimately prejudiced her.
We review de novo whether jury instructions “fairly
and accurately summarize the law,” and we will reverse
only if the instructions, when viewed in their entirety,
so misguided the jury that they led to appellant’s preju-
dice. United States v. Webber, 536 F.3d 584, 599 (7th Cir.
2008) (internal quotation marks and alterations omitted).
We begin by looking to the plain language of the two
jury instructions regarding accomplice liability. In perti-
nent part, instruction nineteen provides:
Any person who knowingly aids . . . the commis-
sion of an offense may be found guilty of that
offense. That person must knowingly associate
with the criminal activity, participate in the activ-
ity, and try to make it succeed. . . . A defendant’s
guilt may be established without proof that the
defendant personally performed every act consti-
tuting the crime charged.
(Government’s Br. at 11, quoting Final Instruction 19.)
Jury instruction nineteen represents a typical aiding
and abetting jury instruction.
Nos. 09-2715 & 09-2788 13
Martinez argues, however, that instruction nineteen
was contradicted by instruction twenty, which states:
If a person knowingly assists in the escape phase
of a bank robbery, he or she is Guilty of aiding
and abetting bank robbery. This is true even if
that person is unaware of the bank robbery until
he or she begins assisting in the escape phase of
the bank robbery. Driving a get away car is par-
ticipating in the escape phase of a bank robbery.
(Id., quoting Final Instruction 20.) Despite an absence
of case law to support her argument, Martinez claims that
it is an incorrect statement of the law that a person is
culpable for a bank robbery when she was not aware of
the robbery until the “escape phase,” and that a person
participates in the “escape phase” of the robbery by
driving the getaway car without any proof of the person’s
knowledge that a robbery had, in fact, taken place. In
essence, Martinez argues that instruction twenty is in
conflict with instruction nineteen, which exculpates
a person that provides assistance but has no knowledge
of the crime.
Although Martinez’s argument that instruction
twenty clouded instruction nineteen appears logical
when each is read in isolation, the skies clear when the
instructions are read as a whole. While instruction
nineteen represents a model aiding and abetting instruc-
tion, instruction twenty presents the well-established
legal proposition that the escape phase of a bank robbery
is in fact part of the robbery itself. See United States
v. Wilkins, 659 F.2d 769, 773 (7th Cir. 1981).
14 Nos. 09-2715 & 09-2788
Martinez argues, however, that instruction twenty
permitted the jury to convict her without requiring the
government to prove that she knowingly assisted in the
bank robbery. We agree, however, with the govern-
ment that the jury instructions were correct statements
of the law. Instruction twenty explicitly provided that to
be found guilty of aiding and abetting, Martinez must
have “knowingly assist[ed] in the escape phase of a bank
robbery.” Because the escape phase is part and parcel of
a bank robbery, knowledge of the bank robbery that
comes into being after the robbery but in connection
with the getaway is knowledge of the ongoing criminal
conduct itself. Therefore, any person that knowingly
participates in the escape phase of a bank robbery be-
comes a principal actor in the robbery. Wilkens, 659 F.2d
at 773; see also United States v. Moore, 936 F.2d 1508, 1526
(7th Cir. 1991).
Jury instruction twenty was thus a correct statement
of the law, and it did not conflict with instruction nine-
teen. Because Martinez knowingly and willfully partici-
pated in the escape phase of the bank robbery by driving
the car in an obvious “getaway” fashion, and thereby
becoming, if she was not already, a principal in the crime,
the district court did not err by giving instruction twenty
to the jury.
We also note that based on the numerous incrim-
inating facts of this particular case, common sense must
prevail as to whether the jury could actually have been
misguided by these two instructions when read to-
gether. Martinez drove Quintero to the bank in her
Nos. 09-2715 & 09-2788 15
van. Instead of parking in the bank parking lot, she
parked in a lot adjacent to the bank’s lot. When Quintero
got out of her van to go into the bank, he carried with
him a gun, a mask, and a bag he later used to collect cash.
In the front seat of the van next to Martinez, the police
found a woman’s wig in a purse, a second ski mask, and
a second loaded gun. Martinez also wore a jumpsuit in
an apparent effort to disguise herself.
After Quintero ran out of the bank and jumped into
the van, obviously carrying property obtained from
inside the bank, Martinez led the police on a high-speed
chase. If Martinez implausibly failed to understand that
a robbery was about to occur when Quintero exited the
van and went into the bank carrying a gun and wearing
a ski mask, she had to know that a robbery had been
committed when she elected to drive the getaway car
evasively and at high speeds in an attempt to elude
police officers. Her participation in the escape phase of
the bank robbery was therefore sufficient to convict her
of being an accomplice in accordance with jury instruc-
tions nineteen and twenty.
Lastly, Martinez contends that her sentence was unrea-
sonable because there was insufficient evidence to sup-
port an enhancement of her sentence for discharge of
a firearm and that the district court failed to consider
mitigating factors. We review Martinez’s sentence for
reasonableness. Rita v. United States, 551 U.S. 338, 341
(2007). While we may provide a presumption of reason-
ableness for a within-guidelines sentence, id. at 350-51,
appellate courts are not permitted to apply a presump-
16 Nos. 09-2715 & 09-2788
tion of unreasonableness to sentences imposed outside
of the recommended guidelines range, Gall v. United
States, 552 U.S. 38, 51 (2007). We review de novo the
district court’s application of the guidelines, and its
findings of fact for clear error. United States v. Samuels,
521 F.3d 804, 815 (7th Cir. 2008).
Although the jury acquitted Martinez of count
two—discharge of a firearm during the commission of
a violent crime—the district court nonetheless followed
the recommendation in the PSR to impose a sentence
for count one that incorporated an enhancement for
the discharge of a firearm. It is well settled that a sen-
tencing court may consider conduct of which a de-
fendant has been acquitted when sentencing. United
States v. Watts, 519 U.S. 148, 152-53 (1997); United States
v. Price, 418 F.3d 771, 787-88 (7th Cir. 2005). And while
the government must prove guilt beyond a reasonable
doubt to the jury, it need only show the charged conduct
by a preponderance of the evidence at sentencing.
Watts, 519 U.S. at 157.
A co-conspirator’s reasonably foreseeable actions can
be attributed to a co-defendant for the purposes of sen-
tencing. See U.S.S.G. § 1B1.3(a)(1)(A) & (B); United States
v. Wallace, 212 F.3d 1000, 1005 (7th Cir. 2000). Here,
the district court was required to look at all relevant
conduct surrounding the bank robbery in sentencing
Martinez. Taking all of the evidence of events leading
up to the robbery, the robbery itself, the escape phase,
and the materials later found in the van—including
a second loaded handgun—the district court was rea-
Nos. 09-2715 & 09-2788 17
sonable in concluding that Quintero’s firing of the gun
could be attributed to Martinez as an aider and abettor.
Martinez’s sentencing enhancement for the discharge of
a firearm was thus appropriate.
III. C ONCLUSION
Because we find that Quintero’s right to appellate
review was properly waived, we D ISMISS his appeal.
We A FFIRM Martinez’s conviction and sentence because
the district court did not err in giving jury instruc-
tion number twenty and the sentence imposed was not
unreasonable.
8-25-10