In the
United States Court of Appeals
For the Seventh Circuit
No. 10-3784
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
K ENDRICKS D. K ILCREASE,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of Illinois.
No. 09-10057-001—Michael M. Mihm, Judge.
A RGUED N OVEMBER 8, 2011—D ECIDED JANUARY 6, 2012
Before K ANNE, S YKES, and H AMILTON, Circuit Judges.
H AMILTON, Circuit Judge. Kendricks Kilcrease pled
guilty to possessing crack cocaine with intent to distrib-
ute. See 21 U.S.C. § 841(a)(1). As part of his plea
agreement he promised to cooperate with the govern-
ment in exchange for a chance at a lower sentence. He
also waived the right to challenge on appeal “any and all
issues” arising from his conviction and sentence. The
district court sentenced Kilcrease to life imprisonment,
2 No. 10-3784
the statutory minimum given the amount of crack, his
prior convictions for felony drug offenses, and the gov-
ernment’s decision not to move for a sentence below
the mandatory minimum. See 21 U.S.C. §§ 841(b)(1)(A)(iii),
851 (2006).
Kilcrease argues on appeal that the plea agreement
is unenforceable and, in the alternative, that the govern-
ment breached that agreement by not moving under
18 U.S.C. § 3553(e) to reduce his sentence below the
statutory minimum based on what he says was
substantial assistance. We conclude, however, that the
plea agreement in general and the appellate waiver
are enforceable. There also is nothing in the record in-
dicating that the government harbored any improper
motive or acted irrationally in declining to move for a
sentence reduction. Accordingly, we dismiss the appeal.
I.
Kilcrease was arrested in Peoria, Illinois, after traveling
by bus from Chicago with 174 grams of crack and
17 grams of heroin. He was charged by indictment with
violating § 841(a)(1), and the prosecutor filed a notice
of enhancement under § 851 listing three prior convictions
for felony drug offenses. In a written plea agreement,
Kilcrease agreed to cooperate with the government in
exchange for possible sentencing concessions. In addi-
tion to the waivers of Kilcrease’s appellate and post-
conviction rights, his plea agreement included a rep-
resentation by the government that it reserved for itself
“the right, in its sole discretion,” to request a sentence
No. 10-3784 3
below the statutory minimum life sentence if Kilcrease
provided what the government deemed to be substantial
assistance in the investigation or prosecution of other
criminal offenses. (A motion by the government under
18 U.S.C. § 3553(e) provided the only mechanism for
avoiding a mandatory life sentence, unless the govern-
ment amended its § 851 notice.) The government also
promised not to file more charges based on the offense
conduct and agreed that Kilcrease qualified for a three-
level reduction under U.S.S.G. § 3E1.1 for acceptance
of responsibility.
The district court conducted a thorough plea colloquy
pursuant to Federal Rule of Criminal Procedure 11. The
court discussed with Kilcrease the elements of the
offense charged. He admitted that he brought at least
50 grams of crack to Peoria with the intent to sell it. The
court detailed “the very broad nature” of Kilcrease’s
appellate waiver, which Kilcrease assured the court he
understood. Kilcrease admitted having at least two con-
victions for a felony drug offense, and the court ensured
his understanding that, as a result, he faced a mandatory
sentence of life imprisonment. The only avenue for
a sentence below life, the court explained, would be a
motion for a reduced sentence, made by the govern-
ment “in its sole discretion,” based on substantial assis-
tance from Kilcrease. At first Kilcrease acknowledged
that he understood that the government retained discre-
tion whether to move for a lower sentence. The court
asked if he had any questions, and he then said that
he “didn’t know it was like that.” That comment
prompted the district court to recess the plea colloquy so
4 No. 10-3784
that Kilcrease could speak with his attorney. When
the proceeding resumed later in the day, Kilcrease ex-
pressed his understanding of the government’s discre-
tion and confirmed that he wished to proceed with
his guilty plea under the agreement. The court accepted
his guilty plea.
Eight months later, while awaiting sentencing, Kilcrease
filed a pro se motion to withdraw that plea. He main-
tained that during the plea negotiations his lawyer had
led him to believe that the government might dismiss
the § 851 filing or amend it to allege only one prior
felony conviction. (Without any recidivism enhance-
ment, the minimum prison sentence would have been
10 years. With an enhancement based on only one con-
viction, the minimum sentence would have been 20
years. 21 U.S.C. § 841(b)(1)(A) (2006).) After the district
court had permitted defense counsel to withdraw and
appointed substitute counsel, Kilcrease withdrew that
motion.
At the beginning of Kilcrease’s sentencing hearing, the
attorneys met with the district court in camera to
discuss the extent of Kilcrease’s cooperation. The gov-
ernment informed the court that it would not move
under § 3553(e) for a sentence below the statutory mini-
mum. Kilcrease had begun “a course of cooperation,” the
prosecutor explained, but his assistance had not led to
any arrests or charges. Defense counsel did not dispute
this representation but argued that Kilcrease’s efforts
still should be rewarded and added that Kilcrease
had offered assistance in a pending prosecution. The
No. 10-3784 5
prosecutor told Kilcrease that a post-judgment motion
for a reduced sentence under Federal Rule of Criminal
Procedure 35 was still a possibility if future coopera-
tion proved useful.
After the in camera proceeding, the district court
imposed the mandatory sentence of life imprisonment.
Without the § 851 enhancement, Kilcrease’s total
offense level of 34 and criminal history category of VI
would have yielded a guidelines imprisonment range
of 262 to 327 months.
II.
Kilcrease’s appeal fails at the threshold of the ap-
pellate waiver in his plea agreement. To avoid that
waiver, Kilcrease argues that the plea agreement is
void because, he maintains, there was no consideration
given for his guilty plea. At the same time, however,
Kilcrease seeks specific performance of the supposedly
“void” plea agreement. Specific performance, in his
view, would amount to ordering the government to file
a § 3553(e) motion. The government counters that
Kilcrease’s appeal waiver is enforceable and that we
should dismiss this appeal.
We enforce appellate waivers when the “terms are
express and unambiguous, and the record shows that the
defendant knowingly and voluntarily entered into the
agreement.” United States v. Aslan, 644 F.3d 526, 534
(7th Cir. 2011); see United States v. Worden, 646 F.3d 499,
502 (7th Cir. 2011); United States v. Chapa, 602 F.3d
6 No. 10-3784
865, 868 (7th Cir. 2010). Kilcrease does not contend
that he misunderstood the appellate waiver. Instead, he
characterizes the waiver as part of an unenforceable
plea agreement. Since a waiver of appeal is not valid
if the underlying plea agreement is unenforceable,
United States v. Sakellarion, 649 F.3d 634, 639 (7th Cir.
2011); United States v. Cole, 569 F.3d 774, 776 (7th Cir.
2009), our starting point is the plea agreement. And
because Kilcrease abandoned his effort in the district
court to withdraw the guilty plea entered pursuant to
that agreement, we review only for plain error. See
United States v. Vonn, 535 U.S. 55, 59 (2002); United
States v. Polak, 573 F.3d 428, 431 (7th Cir. 2009).
Kilcrease, who is represented by new counsel on
appeal, first contends that he received no consideration
in exchange for his guilty plea. He acknowledges that
the government not only promised to forgo bringing
more charges but also agreed to a reduction for
acceptance of responsibility and gave him the oppor-
tunity to cooperate to a degree that might earn him a
sentence below the mandatory minimum. As a conse-
quence of facing a mandatory life sentence, however,
the only practical benefit he received from the agree-
ment was the government’s promise to consider
moving for a reduced sentence. We agree that without
a government motion under § 3553(e), the other terms
of the plea agreement could not have benefitted
Kilcrease, so we focus our attention on that term.
Kilcrease contends that the discretion afforded the gov-
ernment in deciding whether to make the motion
rendered the promise illusory and the plea agreement
unenforceable.
No. 10-3784 7
We recognize that Kilcrease was in a very weak bar-
gaining position. He had been caught red-handed with
a distribution quantity of crack cocaine and he had
several prior drug felonies. Substantial assistance
was his only hope of avoiding a life sentence, and the
prosecution could not promise him a break without
knowing what assistance he could provide. The weak-
ness of Kilcrease’s position was evident in his plea agree-
ment. The question is whether the opportunity to convince
the prosecution to move for a lower sentence provided
sufficient consideration to make the agreement enforceable.
We find that it did. The prosecutorial discretion
inherent in evaluating and deciding whether and how to
reward a defendant’s cooperation does not, by itself,
render a plea agreement invalid. See Wade v. United
States, 504 U.S. 181, 185-86 (1992); United States v. Billings,
546 F.3d 472, 476-77 (7th Cir. 2008); United States v. Emerson,
349 F.3d 986, 988 (7th Cir. 2003). We agree with the Third
Circuit that a promise to evaluate in good faith whether a
defendant’s cooperation warranted a § 3553(e) motion
provided sufficient consideration for his guilty plea.
United States v. Isaac, 141 F.3d 477, 483 (3d Cir. 1998)
(government’s promise to consider motion for sub-
stantial assistance departure required government to
act in good faith and therefore provided sufficient con-
sideration to support plea agreement: “Isaac did not
strike an illusory bargain. He, as would anyone else in
the same position, had a reasonable expectation that
there would be a discretionary evaluation of his coopera-
tion in good faith.”); see also United States v. Brown, 571
F.3d 690, 695 (7th Cir. 2009) (recognizing a valid plea
8 No. 10-3784
agreement can give government unilateral authority to
determine whether defendant has earned a government
motion for lower sentence); United States v. Artley, 489
F.3d 813, 825 (7th Cir. 2007) (same); United States v. Rexach,
896 F.2d 710, 713-14 (2d Cir. 1990) (citing Restatement
(Second) of Contracts § 228, comment a, and holding
that plea agreement that left downward departure
motion to discretion of government required honest,
good faith evaluation by government, which was en-
forceable requirement). The plea agreement here did
not fail for lack of consideration.
Kilcrease also argues that, even if there was consider-
ation for his guilty plea, he did not enter that plea know-
ingly. He asserts primarily that he did not understand
that, unless the government filed a § 3553(e) motion,
he faced a mandatory life sentence. But Kilcrease
already had received notice through the § 851 enhance-
ment that the government knew about his three prior
convictions for felony drug offenses, and his plea agree-
ment explicitly stated that two such convictions would
be enough to subject him to a mandatory life sentence.
Immediately after the district court explained that
Kilcrease was facing a mandatory life sentence, the
court then asked: “Do you understand that you are facing
life imprisonment here?” He responded: “Yes, sir.”
Kilcrease’s representations at the plea colloquy are pre-
sumed truthful, and he does not suggest to this court
that he was lying when he made them. See Hutchings
v. United States, 618 F.3d 693, 699 (7th Cir. 2010); United
States v. Loutos, 383 F.3d 615, 619 (7th Cir. 2004).
No. 10-3784 9
Instead Kilcrease focuses on an exchange that occurred
a few minutes later in the colloquy. The district court
explained that the only way Kilcrease could avoid a
life sentence was if the government decided to file a
motion to that effect, that neither the court nor Kilcrease
could force the government to do so, and that even if
the government filed the motion, the court could deny
it. Kilcrease initially said he understood but then said:
“I didn’t know it was like that.” The court immediately
and properly took a recess to give Kilcrease an oppor-
tunity to talk with his lawyer about the matter.
When the hearing resumed later in the day, the court
reminded Kilcrease about the issue of the government’s
discretion to decide whether to file a motion for a
sentence of less than life in prison. The court asked
Kilcrease if he understood the explanation that only the
government could make the motion described in para-
graph 15 of the plea agreement. Kilcrease responded:
“Yes, sir.” Although the exchange after the recess could
have been more detailed, we are satisfied that the district
court took sufficient care to ensure that Kilcrease under-
stood his choice and reasonably found that he did. The
care the district court took to explain the mandatory
life sentence and Kilcrease’s repeated assurances
that he understood demonstrate that he knowingly and
voluntarily entered the guilty plea. See United States v.
Quintero, 618 F.3d 746, 751 (7th Cir. 2010); Chapa, 602
F.3d at 868-69; United States v. White, 597 F.3d 863, 868
(7th Cir. 2010).
Kilcrease presses one further argument about the
validity of his guilty plea: He contends that the district
10 No. 10-3784
court did not develop an adequate factual basis for the
plea because he never expressed his intent to dis-
tribute the crack. By pleading guilty, though, Kilcrease
admitted the essential elements of the offense, including
the element of intent to distribute. See United States v.
Phillips, 645 F.3d 859, 863 (7th Cir. 2011); Torzala v. United
States, 545 F.3d 517, 524 (7th Cir. 2008). That admission
was enough, but Kilcrease himself also said during the
plea colloquy that the crack he brought to Peoria “was
supposed to [get] sold.” Moreover, Rule 11(b)(3) requires
only that the district court assure itself that a factual
basis exists for a defendant’s guilty plea. United States
v. Burnside, 588 F.3d 511, 522 (7th Cir. 2009); United States v.
Peleti, 576 F.3d 377, 382 (7th Cir. 2009). In this instance
the court would have inferred Kilcrease’s intent to dis-
tribute the crack just from the fact that it weighed 174
grams. See United States v. Baker, 655 F.3d 677, 684 (7th
Cir. 2011); United States v. Ortiz, 474 F.3d 976, 983 (7th
Cir. 2007).
Kilcrease’s guilty plea thus is valid, and so too is his
waiver of appeal. See Sakellarion, 649 F.3d at 639; Nunez
v. United States, 546 F.3d 450, 453 (7th Cir. 2008). As the
government argues, then, this appeal must be dis-
missed. We note, though, that the waiver is only one of
the intractable obstacles facing Kilcrease, who does not
even allege a basis from which to conclude that the gov-
ernment improperly refrained from moving for a
reduced sentence under § 3553(e). A prosecutor’s deci-
sion to withhold a discretionary motion for a reduced
sentence based on cooperation is not subject to judicial
scrutiny unless the defendant has alleged, and made a
No. 10-3784 11
“substantial threshold showing,” that the decision was
based on an unconstitutional motive or was not ra-
tionally related to any legitimate government end. Wade,
504 U.S. at 185-86; see United States v. Miller, 458 F.3d
603, 605 (7th Cir. 2006). Kilcrease does not assert either
of these forbidden grounds. Instead he insists that the
government provided “zero information as to how they
are dissatisfied with the defendant’s truthfulness.” The
prosecutor explained at sentencing, however, that a
§ 3553(e) motion had not been filed because Kilcrease’s
proffer had “borne no fruit whatsoever.” Kilcrease did
not contest the prosecutor’s statement or claim a breach
of the plea agreement. His belated disagreement with
the government’s assessment of his cooperation raises
no reviewable objection. Billings, 546 F.3d at 476-77;
Miller, 458 F.3d at 605; Emerson, 349 F.3d at 988.
D ISMISSED.
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