In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-1198
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LARRY COLLINS, also known as SCOOTER,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:15-CR-00379-3 — Gary Feinerman, Judge.
____________________
ARGUED DECEMBER 15, 2020 — DECIDED FEBRUARY 3, 2021
____________________
Before KANNE, HAMILTON, and BRENNAN, Circuit Judges.
HAMILTON, Circuit Judge. Larry Collins was charged in
2014 with participating in a heroin distribution ring. He
pleaded guilty to two charges and was sentenced to 180
months in prison, the statutory mandatory minimum for
those offenses. In this direct appeal, Collins seeks to withdraw
his guilty plea because, he says, at sentencing the government
breached the plea agreement by failing to tell the court that he
2 No. 20-1198
cooperated with its investigation. Collins did not raise this ar-
gument in the district court, so we review it under the de-
manding “plain error” standard. We affirm. Even if there
might have been a breach of the plea agreement, which we
doubt, it was not plain. And even if there had been a plain
error, the unusual circumstances of this case show that Collins
did not suffer any prejudice from it. His sentence was the low-
est the law would permit, and the plain-error review does not
entitle Collins himself to choose to withdraw his guilty pleas.
I. Factual and Procedural Background
Collins’s boss supplied heroin out of “stash houses” where
workers mixed, stored, and packaged drugs. They kept fire-
arms at the houses and sold heroin to street distributors. After
Collins was charged with trafficking heroin, his cooperation
with the government became relevant to sentencing. His first
attempt, and the focus of this appeal, was his meeting with
the prosecutor to discuss his role in the drug distribution ring.
Collins and his lawyer hoped for “safety-valve” relief, which
allows some cooperating defendants to be sentenced below
an otherwise-applicable statutory minimum by telling the
government what they know about their own
crimes. See 18 U.S.C. § 3553(f). At the meeting, however, both
the defense and the prosecution realized that § 3553(f)(2)
barred Collins from safety-valve relief because his offenses in-
volved firearms.
Collins later negotiated a plea deal with the govern-
ment. He pleaded guilty to possessing heroin with intent to
distribute, 21 U.S.C. §§ 841(a)(1), 846, and possessing a fire-
arm in furtherance of a drug trafficking offense, 18 U.S.C.
§ 924(c)(1)(A)(i). The first charge carried a ten-year mandatory
minimum sentence and the second a five-year mandatory
No. 20-1198 3
minimum consecutive to the first, for a total minimum of fif-
teen years in prison.
The second episodes relevant to cooperation stem from the
written plea agreement. Collins agreed to “fully and truth-
fully cooperate in any matter.” In exchange, the government
held out the only remaining possibility for avoiding the man-
datory minimum fifteen years. If the government determined
that Collins complied, it promised it would move for a down-
ward departure from the statutory minimum under the terms
of 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1. In addition, the
government agreed to “make known to the sentencing judge
the extent of [Collins’s] cooperation” in “providing complete
and truthful information in any investigation and pre-trial
preparation and complete and truthful testimony in any …
proceeding.”
The judge accepted Collins’s guilty plea. At the plea hear-
ing, the judge explained that the plea deal required Collins to
cooperate with the government, and that, if he did, he could
receive a downward departure in his sentence, below the stat-
utory minimums. After discussing the agreement and ensur-
ing that Collins understood his rights, as required by the de-
tailed provisions of Federal Rule of Criminal Procedure 11(b),
the judge ruled that his pleas were knowing and voluntary
and found him guilty.
Before sentencing, however, Collins chose not to follow
through. He did not cooperate as he had promised and as the
government wanted. Consistent with the plea agreement, the
government had planned to call Collins to testify at his co-
defendants’ trial. Three weeks before that trial, however, Col-
lins told the prosecutors that he would not meet with them.
The government made a second request for Collins’s lawyer
4 No. 20-1198
to schedule a meeting with the government. Again, Collins re-
fused to attend. The government then made a third request.
Collins appeared for the meeting, but when the prosecutor
asked Collins one question about guns, he refused to answer
and left the meeting.
About two weeks later, Collins moved to withdraw his
guilty pleas. He said that he had learned about illegally ob-
tained evidence. He also faulted his lawyer for telling him to
participate in the safety-valve meeting even though Collins
was not eligible for relief. The court denied his motion.
Sentencing came next. The government did not move for
a downward departure from the statutory minimum. It ex-
plained that Collins had refused its three requests to provide
“complete and truthful testimony” as required by the plea
agreement. Collins disputed the government’s position, say-
ing that he had attended one meeting, but that was the meet-
ing where he declined to answer the question and left. The
district court concluded correctly that it was “solely in the
government’s discretion” to decide whether Collins had been
forthcoming enough to earn a downward departure. Given
Collins’s lack of cooperation, the government’s refusal to
move for one was amply justified. The court sentenced Collins
to fifteen years in prison—the lowest sentence available.
II. Analysis
On appeal, Collins argues that the government breached
the plea agreement by not telling the judge that he had tried
to cooperate during his original safety-valve proffer, which
occurred before he entered into the plea agreement. Collins
says that he relied on the government’s promise when he
No. 20-1198 5
pleaded guilty. He maintains the breach entitles him to with-
draw his plea and proceed to trial.
Because the parties do not dispute the relevant facts, the
question of breach is a legal one that we review de novo. See
United States v. Wyatt, 982 F.3d 1028, 1030 (7th Cir. 2020). A
government breach of a plea agreement can be a very serious
matter, particularly if it concerns the government’s sentencing
recommendation or position. Id. Depending on the circum-
stances, a proven breach may be remedied by resentencing,
ordinarily before a different judge, or by allowing the defend-
ant to withdraw his plea. Santobello v. New York, 404 U.S. 257,
262–63 (1971) (finding that government’s sentencing recom-
mendation breached its plea agreement and remanding to
trial court to decide whether remedy should be resentencing
or plea withdrawal).
In this case, however, we must approach the questions of
breach and remedy through the lens of plain error. Collins did
not raise in the district court his claim that the government
had breached the plea agreement. E.g., Puckett v. United States,
556 U.S. 129 (2009) (applying plain-error review to new claim
on appeal of breach of plea agreement); see Fed. R. Crim. P.
51(b) & 52(b). The Supreme Court explained in Puckett that
proving plain error is “difficult, ‘as it should be.’” 556 U.S. at
135. Collins must show (1) that there was a breach that (2) was
clear and obvious, which (3) affected his substantial rights
and (4) seriously disturbed the fairness, integrity, and reputa-
tion of the judicial proceedings. Id. (applying four-step plain-
error review to government’s breach of promise to recom-
mend guideline reduction). We follow all four of those steps.
First and second, it is possible that the government
breached its plea agreement here, but any possible breach was
6 No. 20-1198
not “clear” or “obvious.” The plea agreement required the
government to “make known at the time of sentencing the ex-
tent of [Collins’s] cooperation.” At sentencing, the govern-
ment truthfully told the court that, shortly before the co-de-
fendants’ trial, it made three attempts to secure from Collins
his “complete and truthful testimony” and that Collins re-
fused to provide it. The prosecutor said nothing, however,
about Collins’s proffer for safety-valve relief before he
pleaded guilty.
Even though the prosecutor was silent about this proffer,
the district court was already aware of it: Collins discussed it
with the court at least four times—during two earlier motion
hearings, in his sentencing memorandum, and at the sentenc-
ing hearing. And at no time did the government dispute the
fact of that proffer.
In the language of at least the federal criminal justice sys-
tem, there is a difference between admitting one’s own guilt
and “cooperating.” The safety valve requires a defendant to
“truthfully provide[] to the Government all information and
evidence the defendant has concerning the offense or offenses
that were part of the same course of conduct or of a common
scheme or plan.” 18 U.S.C. § 3553(f)(5). But if the defendant
has no information useful in prosecuting others, that fact does
not justify denial of safety-valve relief. Id. “Cooperation,” on
the other hand, is usually understood to require truthful in-
formation that provides substantial assistance in prosecuting
others. See § 3553(e); U.S.S.G. § 5K1.1. And cooperation that
satisfied § 3553(e) and § 5K1.1 was the only way Collins could
avoid the mandatory minimum of fifteen years.
No. 20-1198 7
What did the parties mean in requiring the government to
disclose the defendant’s “cooperation” in this plea agree-
ment? Only substantial assistance, or did the parties mean to
include the original unsuccessful proffer under the safety-
valve? We believe the better interpretation is substantial assis-
tance. After it became clear that Collins was not eligible for
the statutory safety valve, substantial assistance would have
been the only way to avoid the fifteen-year mandatory mini-
mum sentence. And that interpretation is consistent with both
sides’ conduct in the sentencing hearing. The government did
not remind the judge about the safety-valve proffer, and the
defense did not suggest that the silence was a breach of the
plea agreement.
On the other hand, we can also understand that it might
have been important for Collins to have the government tell
the judge anything positive about his efforts to accept respon-
sibility by providing truthful information about his own con-
duct. As we noted in Wyatt:
Every judge and lawyer in the federal criminal
justice system knows that arguments and evi-
dence in mitigation carry much greater weight
when they come from the government instead
of the defense. This truism carries extra force
when it comes to assessments of cooperation,
where the government is better informed and
less likely than the defense to exaggerate the
value. That’s why a promise from the govern-
ment to present such mitigating information is
so important. See, e.g., U.S.S.G. §§ 3E1.1 & 5K1.1
(third level of credit for acceptance of responsi-
bility and downward departure for substantial
8 No. 20-1198
assistance available only upon government mo-
tion). That’s also why the presumptive remedy
is reversal and resentencing before a new judge.
Wyatt, 982 F.3d at 1030–31.
Still, if there was a breach in the government’s failure to
remind the judge about the earlier safety-valve proffer, the ar-
guments and evidence pointing in the other direction con-
vince us that it could not have been a plain error.
And further, even if Collins could satisfy the first and sec-
ond steps of plain-error review, he would still fail at the third:
prejudice to his substantial rights. See Puckett, 556 U.S. at 141–
42. Collins must show a reasonable likelihood that, if the pros-
ecutor had spoken up about his first proffer session, the out-
come of the case would have been different. See Wyatt, 982
F.3d at 1031 (finding no prejudice on plain-error review
where court imposed sentence that both parties recom-
mended, well below applicable guideline range); United States
v. Navarro, 817 F.3d 494, 500–01 (7th Cir. 2016) (finding preju-
dice on plain-error review where government’s sentencing
recommendation likely influenced judge to impose higher
sentence).
For three reasons, the government’s silence about the
safety-valve proffer did not prejudice Collins, either at sen-
tencing or in his decision to plead guilty. First, as to sentenc-
ing, the government warned Collins in its memorandum
(filed before the sentencing hearing), that the prosecutor
planned to tell the judge that Collins had not cooperated. De-
spite this warning, Collins did not respond at sentencing by
asserting that the court did not have enough information to
No. 20-1198 9
sentence Collins fairly. Nor could he, given that the court al-
ready had received this information.
Second, if the government had told the court that Collins
made a safety-valve proffer, we see no reasonable likelihood
that the sentence would have been any more favorable to him.
See United States v. Salazar, 453 F.3d 911, 915 (7th Cir. 2006)
(affirming on plain-error review; defendant did not show that
his sentence would have been lower but for prosecutor’s
breach). As Judge Feinerman correctly explained here, unless
the government moved for a downward departure, a decision
left to the prosecutor’s discretion, the court could not sentence
Collins below the statutory minimum of fifteen years. The
government did not move for a departure, and Collins does
not challenge that decision. He wound up with the lowest sen-
tence he could have received.
With a lighter sentence not legally available here, Collins
argues that he was prejudiced by the government’s breach be-
cause he was not allowed to withdraw his guilty plea. His the-
ory is that, if the district court had known of the breach, it
would have allowed Collins to withdraw his guilty plea. We
see no reasonable likelihood of this outcome. District courts
may allow defendants to withdraw their pleas only for a “fair
and just reason.” Fed. R. Crim. P. 11(d)(2)(B). This is a heavy
burden where the court conducted a thorough Rule 11 collo-
quy before accepting the plea. See United States v. Mays, 593
F.3d 603, 607 (7th Cir. 2010). The typical “fair and just” rea-
sons for permitting a defendant to withdraw pleas are claims
of innocence or contentions that the plea was not knowing
and voluntary. Id.
Neither applies here. Collins does not claim innocence.
And because any breach occurred at sentencing, “nothing”
10 No. 20-1198
can establish “that the Government’s breach of a plea agree-
ment retroactively cause[d] the defendant’s agreement to
have been unknowing or involuntary.” Puckett, 556 U.S. at
137. Even if we assume there was a breach at sentencing here,
it took the form of a failure to tell the judge once more what
he already knew.
There also is no reason to think Collins provided any sub-
stantial cooperation in that initial and incomplete proffer ses-
sion, such that a presentation of the information by the gov-
ernment would have caused the judge to see Collins in a dif-
ferent light, especially after his own pre-sentencing breach of
the plea agreement in refusing to provide the promised coop-
eration about co-defendants. We see no reason to think that
the judge would have thought that the appropriate response
to the asserted breach would have been to allow Collins to
withdraw his pleas. Even if there had been a breach, Collins’s
substantial rights were not violated.
Finally, Collins’s request for relief also fails to satisfy the
fourth prong of plain-error review: the likely effect on the fair-
ness, integrity, and public reputation of the judicial proceed-
ings. Puckett, 556 U.S. at 135, 142. When a remedy is warranted
for breach of a plea agreement’s term on a sentencing recom-
mendation, our “usual course” is to remand for resentencing
(as opposed to allow a plea withdrawal). Navarro, 817 F.3d at
503, n.1; see also United States v. Diaz-Jimenez, 622 F.3d 692, 696
(7th Cir. 2010) (remanding for resentencing where prosecu-
tor’s sentencing recommendation breached the plea agree-
ment). But here, a resentencing by a different judge would
again yield a prison term for Collins of no less than the statu-
tory minimum of fifteen years. The result could not change in
his favor.
No. 20-1198 11
We recognize that Collins wants to withdraw his guilty
plea, but he is not entitled to that relief. See Kernan v. Cuero,
138 S. Ct. 4, 8 (2017) (emphasizing that Santobello left it to trial
courts, on remand from a proven breach, to decide whether
defendant’s remedy should be resentencing or an oppor-
tunity to withdraw his plea). As discussed above, Collins does
not meet the standard criteria for a discretionary plea with-
drawal. Because he received the minimum sentence allowed
by law for his convictions, neither resentencing nor plea with-
drawal is necessary to protect the fairness, integrity, or repu-
tation of the courts.
The judgment of the district court is AFFIRMED.