NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued October 21, 2008
Decided November 12, 2008
Before
KENNETH F. RIPPLE, Circuit Judge
TERENCE T. EVANS, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 06‐3144
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Northern District of
Illinois, Eastern Division.
v.
No. 05 CR 738
DAVID GREEN,
Defendant‐Appellant. Charles R. Norgle, Judge
ORDER
David Green went on a bank robbing spree in August 2005, striking four times
over a two‐week period. But it wasn’t long before the police caught up with him. He
was arrested just a few days after his final robbery, and, after receiving Miranda
warnings and waiving his rights, he confessed to the police. Along with his confession,
the government had eye witnesses and surveillance tapes to prove he was the culprit.
Wisely, Green decided to cooperate with the government and agreed to plead guilty. In
No. 06-3144 Page 2
exchange for his plea, the government promised to dismiss one of the robbery counts,
and Green and the government agreed on a guidelines calculation that included a
reduction in his offense level in light of his timely acceptance of responsibility. This
plea agreement also contained an appeal waiver which states: “the defendant
knowingly waives the right to appeal any sentence imposed in accordance with this
agreement or the manner in which that sentence was determined . . . in exchange for the
concessions made by the United States . . . .”
At the change of plea hearing, the district court went through the plea agreement
with Green, repeatedly ensuring that he read and understood that it “spelled out what
[his] rights are and what [he] would be giving up by pleading guilty.” Green, who
testified that he had an associate of arts degree and attended Southern Illinois
University, said several times that he personally read the agreement and had no
questions about it. The court also confirmed that Green went over the plea agreement
with his attorney, both in several face‐to‐face conversations and over the phone.
According to Green, trial counsel explained the rights that he would be giving up by
pleading guilty and answered any questions he had regarding the agreement. Before
allowing Green to enter his plea, the court paused, giving him a final chance to raise
any concerns he had. Having no questions for the court, Green then pleaded guilty.
Despite this otherwise thorough colloquy, the court made no explicit mention of the
appeal waiver. The district court went on to sentence Green to 70 months of
imprisonment, the bottom of his guidelines range.
Despite the appeal waiver, Green filed, pro se, a notice of appeal, arguing
primarily that the guidelines range imposed by the court was higher than the one his
trial counsel promised he would receive. Green, with new appointed appellate counsel,
now argues that his plea was defective because the district court failed to warn him
about the appeal waiver during the change‐of‐plea hearing. Because Green did not
raise this issue before the district court, we review it only for plain error. United States
v. Vonn, 535 U.S. 55, 59 (2002).
Federal Rule of Criminal Procedure 11(b)(1)(N) directs the district court to
“inform the defendant of, and determine that the defendant understands,” an appeal
waiver before accepting a guilty plea. United States v. Sura, 511 F.3d 654, 661 (7th Cir.
2007). The district court failed to do so here. But identifying the error is not the end of
the story. Under plain‐error review, Green must also show that the mistake affected his
substantial rights, or, in more concrete terms, that there is a reasonable probability that,
but for the Rule 11 error, he would not have entered the plea. United States v.
Dominguez Benitez, 542 U.S. 74, 76 (2004); Sura, 511 F.3d at 658.
No. 06-3144 Page 3
Green maintains that he did not understand the meaning of the plea agreement
and would not have pleaded guilty if he did. This argument is unpersuasive. On its
face, the appeal waiver is unambiguous‐‐it explains in uncluttered language that Green
has a statutory right to appeal his sentence, which he gave up in exchange for the
concessions made by the government. United States v. Edgar, 348 F.3d 867, 872 (10th Cir.
2003) (noting that the clarity of a plea agreement itself is a relevant consideration).
Green, who repeatedly testified that he read and understood the agreement, didn’t need
to be a legal expert to grasp the meaning of that provision. Given Green’s level of
education and his previous experiences with the courts (his criminal record suggests
that he was no stranger to the legal system), we take his testimony that he understood
the plea agreement at face value. Further undermining his claim that he misunderstood
the waiver, Green testified that he discussed with trial counsel the outlines of the plea
agreement, along with the specific rights he would be giving up, which presumably
included his right to appeal. Green confirmed that he had such discussions, both in
several face‐to‐face conversations and over the phone.
What’s more, when deciding whether Green’s substantial rights were affected,
we look to the entire record, not just to the plea proceedings alone. Dominguez Benitez,
542 U.S. at 80; United States v. Borrero‐Acevedo, 533 F.3d 11, 17 (1st Cir. 2008). Here, the
government had overwhelming evidence of Green’s guilt, and, consequently, Green
had compelling reasons to make a deal and reduce his sentencing exposure. Despite his
(pro se) protestations to the contrary, Green did receive a significant discount on his
prison term by pleading guilty. Green’s 70‐month sentence falls well below the
guidelines range that would have been imposed had he not accepted responsibility for
his crimes and received concessions from the government. With such a strong case
against him, its difficult to see how the omission of the appellate waiver warning from
the bench had any affect on Green’s decision to plead guilty.
Accordingly, we DISMISS this appeal.