In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-2511
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
T’ANGELO L. LOCKWOOD,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 03 CR 114—Allen Sharp, Judge.
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ARGUED JUNE 10, 2005—DECIDED JULY 26, 2005
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Before FLAUM, Chief Judge, and POSNER and KANNE,
Circuit Judges.
KANNE, Circuit Judge. In November 2003, a grand jury
returned an indictment charging T’Angelo Lockwood with
one count of being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1). Lockwood pleaded guilty
pursuant to a written plea agreement. Under the terms of
the agreement, Lockwood admitted that on or about
December 10, 2002, he knowingly possessed a firearm after
having previously been convicted of a felony in 1999.
Lockwood acknowledged that the statutory maximum pen-
2 No. 04-2511
alty he faced was ten years’ imprisonment and that the
district court would determine his sentence after making
findings pursuant to the Sentencing Guidelines. Finally,
Lockwood agreed to waive his right to appeal his sentence
or the manner in which it was determined in any post-
conviction proceeding.1
The government agreed that a sentence equal to the min-
imum term of imprisonment under the applicable sentenc-
ing guideline range would be appropriate. The government
also agreed that in recognition of Lockwood’s acceptance of
responsibility for his criminal conduct, he should be entitled
to the maximum reduction in the offense level under the
Guidelines.
After Lockwood’s guilty plea, the probation office prepared
its presentence report. The report determined that
Lockwood’s prior conviction in 1999 was for a crime of vio-
lence. Pursuant to the terms of the plea agreement, Lock-
1
Lockwood’s plea agreement reads in relevant part:
8. I understand, also, that if I plead GUILTY, I waive the
right to trial by jury. . . .
****
9(j). I understand that the offense to which I am pleading
guilty falls under the Sentencing Guidelines. . . . I am aware
that my sentence will be determined in accordance with the
United States Sentencing Guidelines and this plea agree-
ment. I agree that the Court has jurisdiction and authority to
impose any sentence within the statutory maximum set for
my offense(s) . . . . I expressly waive my right to appeal my
conviction and sentence to any Court on any ground. I also
agree not to contest my conviction, sentence, or the manner
in which my conviction and sentence was determined on any
ground in any appeal . . . or in any post-conviction proceed-
ing. . . .
(Gov’t App. at 2, 4 (capitalization and emphasis in original).)
No. 04-2511 3
wood qualified for a two-level decrease under U.S.S.G. §
3E1.1(a), and the government moved for an additional one-
level decrease in accordance with § 3E1.1(b). Overall, the
report determined that Lockwood’s base offense level should
be 20.
It was not long before Lockwood had second thoughts
about the plea agreement. The government objected to the
presentence report and asserted that a four-level enhance-
ment would be appropriate pursuant to U.S.S.G.
§2K2.1(b)(5), because Lockwood possessed the weapon in
connection with another felony offense—possession with in-
tent to distribute crack cocaine, to be precise. The probation
officer believed, however, that the facts did not support the
enhancement. And Lockwood objected to the government’s
proposed enhancement because the government never
mentioned during the plea negotiations that it was consid-
ering that enhancement. The government responded that
the facts supporting the enhancement were submitted to
Lockwood and his attorney prior to plea negotiations, so the
enhancement was fair game.
On May 28, 2004, at the sentencing hearing, the district
judge unambiguously expressed his reluctance to sentence
Lockwood in accordance with the plea agreement and the
calculated guideline range. The judge declared the factual
support for the government’s proposed enhancement to be
a “close call,” but grudgingly agreed that it was more likely
than not that Lockwood possessed the firearm in connection
with drug dealing, qualifying Lockwood (as the government
argued) for the four-level enhancement and making his
subtotal offense a 24.
The judge also expressed concern with the federal sen-
tencing “process,” but summarized the various factors
present in Lockwood’s case and determined his final offense
level to be 21 and criminal history category IV. This made
Lockwood’s applicable range of imprisonment 57-71 months
4 No. 04-2511
under the guidelines. The judge noted that, pursuant to the
agreement, the government recommended a reduction for
acceptance of responsibility and a sentence at the low end
of the guideline range. The judge acknowledged that he
would follow the recommendations.
The judge then invited Lockwood to address the court.
Among other things, Lockwood denied that he possessed the
cocaine and reiterated that the government “took [him] by
surprise” by not mentioning the drug allegation until after
he pleaded guilty. The judge reiterated his concerns with
the sentence facing Lockwood and with the sentencing
guidelines, stating:
I am seriously considering granting [Lockwood] a spe-
cial leave to appeal this case. I would love to see this
issue presented to the Court of Appeals, frankly. I know
the government—I know what [Lockwood] agreed to; I
know what [Lockwood] waived, but in this case it
just—I’m not mad at anybody . . . and I’m thinking
about that. I am not doing it yet, but I am thinking
about it.
Lockwood’s attorney renewed his objection to the drugs
enhancement and expressed the hope that the judge grant
a “dispensation” to appeal. The judge responded:
I don’t know that I can [grant special leave to appeal].
I don’t want to incur the wrath of the U.S. attorney. It
just feels like the right thing to do here, to tell you the
truth. * * * It wouldn’t be the first or last time that I
have been reversed, but this one is just troublesome to
me. * * * I do believe very strongly that I have the au-
thority to grant a special leave to appeal here. . . .
The judge allowed the prosecutor to respond regarding
the enhancement, after which the judge announced
Lockwood’s sentence: 57 months’ confinement, two years of
supervised release, and a $100 special assessment. The
No. 04-2511 5
judge also granted Lockwood special leave to appeal, despite
Lockwood’s affirmative waiver of that right.
Lockwood took up the district judge’s offer and now
argues on appeal that he is entitled to resentencing because
the judge sentenced him on the basis of judge-found facts in
violation of the Sixth Amendment. This argument, of
course, rests on the Supreme Court’s pronouncements in
United States v. Booker, 125 S. Ct. 738 (2005), decided after
Lockwood was sentenced. At argument, Lockwood requested
a Paladino limited remand so that the district judge could
answer whether he would have given Lockwood the same
sentence had he known the sentencing guidelines were ad-
visory rather than mandatory. United States v. Paladino,
401 F.3d 471 (7th Cir. 2005). Much of the parties’ arguments
concerned whether the district judge rejected Lockwood’s
plea agreement in whole or in part, so Lockwood may also
be seeking to have his sentence vacated and his case
remanded for full resentencing. This distinction is irrele-
vant to the outcome of this case, for the reasons discussed
below.
The government argues that we need not reach
Lockwood’s Booker arguments and should simply dismiss
his appeal. As the government sees it, Lockwood knowingly
and intentionally waived his right to appeal his sentence or
the manner in which it was imposed pursuant to the plea
agreement, which Lockwood concedes was valid and
binding. Under simple contract principles and related
caselaw, Lockwood cannot renege on his plea deal and
therefore has no right to appeal his sentence. The govern-
ment also takes issue with the fact that the district judge
seemingly accepted the plea agreement, and sentenced
Lockwood according to its terms, which meant that the
entire agreement was binding and the judge could not pick
and choose certain portions (e.g., the appellate waiver) to
set aside.
6 No. 04-2511
We will first consider the actions of the district court.
There is no question that the district court expressed re-
luctance to enhance Lockwood’s sentence and to sentence
him in accordance with the plea agreement and the guide-
lines. There is some debate, however, whether the district
judge may have rejected the entire plea agreement or the
portion containing Lockwood’s appeal waiver. The Federal
Rules of Criminal Procedure allow a district judge to reject
plea agreements in their entirety. Fed. R. Crim. P. 11(c)(5).
If a judge does so, Rule 11 requires that the judge make
clear the rejection and openly advise the defendant that he
may withdraw his guilty plea. Id. The judge did not do
either in this case. As dissatisfied as the judge may have
been with the plea agreement, we conclude that the judge
accepted the plea agreement when he sentenced Lockwood
in accordance with its provisions (albeit reluctantly).
We agree with Lockwood that the district judge’s state-
ments and actions could fairly be interpreted as a rejection
of a portion of the plea agreement—specifically, paragraph
9(j), the provision containing Lockwood’s appeal waiver.
Rule 11 does not, however, allow for piecemeal acceptance
of some portions of the plea agreement, but not others. For
example, Rule 11(c)(1)(C) indicates types of agreed recom-
mendations that do or do not bind the court once the
agreement is accepted. In this case, the court recited those
recommendations, declared them “honored,” and sentenced
Lockwood accordingly. As discussed, the judge certainly
acted in a manner consistent with his being bound by the
agreement, and not even Lockwood disputes this.
Even if we assume that the judge intended to reject only
the appeal waiver, Rule 11 does not authorize this form of
departure from the agreement once accepted by the court.
If the judge did not want to accept Lockwood’s plea agree-
ment or any portion thereof, he should have rejected the
whole thing, and the government and Lockwood would have
been back at square one. Instead, he sentenced Lockwood
No. 04-2511 7
consistent with the provisions of the plea agreement and, at
the conclusion of sentencing, granted Lockwood special
leave to appeal his sentence. In essence, the judge accepted
the agreement but sua sponte rescinded one of its provi-
sions—the one pertaining to Lockwood’s appeal waiver. We
agree with the government that Rule 11 does not allow for
such an approach, so the district court was in error when he
granted Lockwood special leave to appeal.
This brings us to Lockwood’s suggestion that his appeal
waiver is invalid because the parties and the court failed to
anticipate Booker. Because plea agreements are basically
contracts, we have evaluated their validity and enforce-
ability under principles of contract law. See United States
v. Cook, 406 F.3d 485, 487-88 (7th Cir. 2005); United States
v. Bownes, 405 F.3d 634, 636 (7th Cir. 2005). More to the
point, it is well established that a defendant’s appeal waiver
is enforceable if made knowingly and voluntarily. See, e.g.,
United States v. Williams, 184 F.3d 666, 668 (7th Cir. 1999);
United States v. Wenger, 58 F.3d 280, 282 (7th Cir. 1995);
accord United States v. Andis, 333 F.3d 886, 889-90 (8th
Cir. 2003) (en banc).
Lockwood does not dispute that he knowingly and in-
telligently waived his right to appeal as part of his plea
agreement. He instead claims that his appeal waiver is
“null and void” because his sentence exceeded the statutory
maximum on the basis of facts found by the district judge in
violation of Booker. This, Lockwood claims, was a “fun-
damental error” of the sort that may resurrect his right to
appeal, see, e.g., United States v. Ogden, 102 F.3d 887, 889
(7th Cir. 1996), or at least entitles him to a limited remand
pursuant to Paladino, which the government concedes is
the proper remedy if we conclude that Lockwood’s appeal
should not be dismissed.
Lockwood is out of luck, however. Although it is clear the
district judge sentenced Lockwood in part on the basis of
facts not found by a jury beyond a reasonable doubt, it is
8 No. 04-2511
equally clear that Lockwood knowingly and intentionally
waived his right to appeal his sentence for any reason. “Any
reason” captures a great deal, including later changes in
law that might favor Lockwood, so even a broadly worded
appeal waiver like Lockwood’s remains effective absent a
contractual provision in the plea agreement stating other-
wise. See Bownes, 405 F.3d at 636 (collecting authority).
The fact that Lockwood, the government, and the district
court failed to anticipate Booker or its sweeping effect on
federal guidelines sentencing does not change this con-
clusion. See United States v. Roche, No. 04-1475, 2005
WL 1618816, at *2 (7th Cir. July 11, 2005). There simply is
nothing special about Booker that would preclude enforce-
ment of an otherwise valid appeal waiver. See Bownes, 405
F.3d at 637 (rejecting the view that “Booker is special
because it brought about a ‘sea change’ in the law”); Roche,
2005 WL 1618816, at *2. We note that most of our sister
circuits have held likewise. See, e.g., United States v.
Reeves, 410 F.3d 1031, 1034 (8th Cir. 2005) (“Unless
expressly reserved . . . , the right to appellate relief under
Booker is among the rights waived by a valid appeal waiver,
even if the parties did not anticipate the Blakely/Booker
rulings.”) (quotation omitted) (collecting authority);
United States v. Blick, 408 F.3d 162, 170 (4th Cir. 2005)
(collecting authority); United States v. Bradley, 400 F.3d
459, 463-66 (6th Cir. 2005).
This is not to say that appeal waivers or plea agreements
are forever set in stone. We have recognized several sen-
tencing situations under which the broad enforcement of
such waivers may be limited. These include, for example,
sentences based on constitutionally impermissible criteria
(such as race), sentences exceeding the statutory maximum,
or ineffective assistance of counsel. See Bownes, 405 F.3d at
637 (collecting authority); see also Cook, 406 F.3d at 487;
Andis, 333 F.3d at 891-92. As best we can tell from the
record, none of these circumstances is present here, nor
does Lockwood present any argument to the contrary.
No. 04-2511 9
In sum, as Lockwood concedes, his appeal waiver was
valid and binding. Booker does not change the enforceability
of this waiver and is not applicable in Lockwood’s case;
therefore, a limited remand under Paladino would not be
appropriate here. Lockwood’s appeal is DISMISSED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-26-05