In the
United States Court of Appeals
For the Seventh Circuit
No. 10-3566
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
JERMEL C. T HOMAS,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 3:09-CR-00088(01)—Robert L. Miller, Jr., Judge.
A RGUED A PRIL 4, 2011—D ECIDED M AY 6, 2011
Before K ANNE, R OVNER, and SYKES, Circuit Judges.
K ANNE, Circuit Judge. Jermel Thomas pled guilty on
March 22, 2010, to the charge of being a felon in posses-
sion of a firearm. In the plea agreement, Thomas waived
the right to appeal his sentence and conviction. Thomas
has nevertheless appealed his sentence, alleging various
errors by the district court. Because the district court
did not plainly err in enforcing the plea agreement, we
dismiss Thomas’s appeal.
2 No. 10-3566
I. B ACKGROUND
As part of his plea agreement, Thomas waived his
right to appeal. In exchange, the government agreed to
recommend a downward adjustment for acceptance of
responsibility and to recommend a sentence at the low
end of the guidelines range. After reviewing Thomas’s
waiver and the factual basis for the charged offense, the
district court held a sentencing hearing.
The presentence report (“PSR”) premised its recom-
mended base offense level of 24 in part on Thomas’s 2002
Indiana battery conviction that the government con-
sidered to be a crime of violence. See U.S.S.G. § 2K2.1(a)(2).
The PSR then recommended increasing the offense level
by 4 because Thomas used the firearm in connection
with the state felony offenses of battery and criminal
recklessness. See U.S.S.G. § 2K2.1(b)(6). Finally, the PSR
recommended a downward adjustment of 3 levels based
on Thomas’s acceptance of responsibility. See U.S.S.G.
§ 3E1.1. The resulting adjusted offense level of 25, coupled
with Thomas’s criminal history category of V, yielded
a recommended guidelines range of 100 to 120 months’
imprisonment.
Thomas made three objections to the PSR. He argued
that his 2002 battery conviction was not a crime of vio-
lence. He also argued that Sentencing Guidelines
§ 2K2.1(b)(6) is unconstitutional. Alternatively, he argued
that § 2K2.1(b)(6) should not apply because he did not
possess a firearm in connection with the commission of
battery or criminal recklessness. Rather, he claims that
he briefly accepted a gun from an acquaintance during
a firefight, but immediately returned it without firing.
No. 10-3566 3
In response to Thomas’s version of the facts, the gov-
ernment presented extensive and compelling evidence
that Thomas had pressed a .357 magnum to the head of
Ronald Payne, Jr., threatened to kill him, and ultimately
shot him in the foot. Because Thomas lied under oath
about the facts underlying his offense, the government
did not recommend a downward adjustment for accep-
tance of responsibility as it had agreed to do. Instead,
it recommended a 2-level upward adjustment for ob-
struction of justice.
The court overruled Thomas’s objections and denied
his request for a continuance of the hearing. It
calculated an adjusted offense level of 30 and a crim-
inal history of V. This combination results in a guide-
lines range of 151 to 188 months’ imprisonment, but
the statutory maximum for the offense of conviction is
120 months’ imprisonment. The district court considered
the relevant § 3553(a) factors and ordered a sentence
of 120 months’ imprisonment. Thomas appealed his
sentence, claiming the district court erred by overruling
his objections to the PSR and by denying his request
for a continuance to allow expert testimony.
II. A NALYSIS
We will not reach the merits of Thomas’s arguments
because he waived the right to appeal his sentence. Nor-
mally, “[w]e review the enforceability of a waiver agree-
ment de novo.” United States v. Chapa, 602 F.3d 865, 868
(7th Cir. 2010). But Thomas never moved to withdraw
his guilty plea in the district court, so he must convince
4 No. 10-3566
us that the district court’s decision to accept his
plea agreement was plainly erroneous. United States v.
Villarreal-Tamayo, 467 F.3d 630, 632 (7th Cir. 2006).
A waiver of appeal is enforceable “if its terms are
express and unambiguous and the record shows that the
defendant knowingly and voluntarily entered into the
agreement.” Chapa, 602 F.3d at 868 (quotation marks
and citations omitted). Thomas does not argue that the
terms of his plea agreement were ambiguous or that he
did not knowingly and voluntarily consent to its terms.
Rather, Thomas argues that the district court plainly
erred in enforcing the agreement because he received no
consideration for waiving his appeal. While Thomas
cites no case holding that lack of consideration renders
waiver of appeal in a plea agreement unenforceable,
some support for his theory exists. See United States v.
Quintero, 618 F.3d 746, 751 (7th Cir. 2010) (“A plea agree-
ment is a contract and is therefore governed by ordinary
contract law principles.”); cf. Santobello v. New York,
404 U.S. 257, 262 (1971) (“[W]hen a plea rests in any
significant degree on a promise or agreement of the
prosecutor, so that it can be said to be part of the induce-
ment or consideration, such promise must be fulfilled.”).
We need not decide whether to accept Thomas’s con-
sideration argument because the government did give
consideration for Thomas’s waiver in the form of two
promises: a promise to recommend a downward adjust-
ment for acceptance of responsibility and a promise to
recommend a sentence at the low end of the guidelines
range. Ultimately, this consideration gave Thomas no
No. 10-3566 5
advantage. Thomas lied under oath, so the government
did not recommend a downward adjustment for accep-
tance of responsibility. And the calculated guidelines
range exceeded the statutory maximum, so the govern-
ment’s promise to recommend a sentence at the low end
of the guidelines range had no effect on Thomas’s sen-
tence. But had things gone differently—that is, had
Thomas actually accepted responsibility instead of of-
fering an implausible denial of the facts of his crime—
the government would have been bound to recommend
a sentence of 100 months’ imprisonment. Thomas’s lack
of foresight does not render his plea agreement unen-
forceable. See United States v. Wenger, 58 F.3d 280, 282
(7th Cir. 1995) (“Defendants who appeal from sentences
following plea agreements always point to unanticipated
and unwelcome developments.”).
III. C ONCLUSION
The district court did not plainly err in enforcing
Thomas’s plea agreement. Accordingly, Thomas’s ap-
peal of his sentence is D ISMISSED.
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