### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 1 9

- 3137
U NITED S TATES OF A MERICA , Plaintiff

- Appellee ,

v.

L INDA N ULF , Defendant

- Appellant

.

____________________ Appeal from the United States District Court for the Northern District of Illinois , Eastern Division

. No. 1: 17

- CR

- 00436

- 2

— Charles R. Norgle , Judg e

.

____________________
A RGUED J UNE 4 , 2 020

— D ECIDED O CTOBER 15, 2020

____________________

Before S YKES , Chief Judge , and E ASTERBROOK , Circuit Judge

. 1
S YKES , C hief Judge

. Linda Nulf participated in a mortgage

fraud scheme that caused in excess of $ 2 million in losses

.

1 Circuit Judge Barrett was a member of the panel when this case was submitted but did not participate in the decision and judgment. The appeal is resolved by a quorum of the panel pursuant to 28 U.S.C. § 46(d).2 No. 1 9

- 3137

She was initially indicted on t hree felony counts a nd faced up to 30 years in prison , but th e government late r superseded those charges and substituted a single misdemeanor
count . Nulf pleaded guilty under a written plea agreement that included an appeal waiver . T he judge imposed a 12

- month sentence, the statutory maximum

. N ulf appealed, n otwithstanding t he appeal waiver . She argue s that the judge interfered with her allocution, wrongly de nied credit for accept ance of responsibility, and committed other assorted mistakes at sentencing . These errors, she contend s , add up to a miscarriage of justice, making the appeal waiver unenforceable.
This argument re lies on United States v. Litos , 847 F.3d 906, 910

– 11 (7th Cir. 2017) , but our decision in that case did
not a nnounce a general “miscarriage of justice” exception to the enforcement of appeal waivers. Rather, Litos fell within

a n established line of cases recognizing a narrow set of extraordinary circumstances that justify displacing an otherwise valid appeal waiver.
Nulf’s case is far from extraordinary, so the normal rule applies: the appeal waiver is enforceable unless the underlying guilty plea was in valid

. Because Nulf does not claim that her plea was unknowing or involuntary, we enforce the waiver and dismiss this appeal.
I

. Background
Linda Nulf worked as a licensed loan originator in Illinois

. For approximately three years, she a nd two co defendants participated in a mortgage

- fraud scheme in which they submitted loan applications containing false information about the applica nt’s income and assets . Nulf pre-No. 1 9

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pared and submitted the fraudulent paperwork to financial institutions and the Department of H ousing and U rban D evelopment (“HUD”) , causin g approximately $ 2.2 million in losse s

. A grand jury indict ed Nulf on three felon y charges : two counts of bank fraud in violati on of 18 U.S.C. § 1344 and one count of making a false statement to a financial institution in violati on of 18 U.S.C. § 1014

. Each of these crimes carr ies a 30

- year maximum prison term. T he government later filed a superseding information charging Nulf with a single count of making a false statement to HUD , a misdemeanor punishable by up to one year in prison. 18 U.S.C. § 1012. Nulf pleaded guilty to the misdemeanor pursuant to a written agreement in which the gov ernment agreed to dismiss the original felony charges . The parties further stipulated that the anticipated offense level was 23, which when combined with Nulf’s nonexistent criminal history would result in the one

- year statutory maximum as the recommended sentence under the Sentencing Guidelines

. The plea agreement also included an appe al waiver: [D] efendant knowingly waives the right to appeal her conviction, any pre

- trial rulings by the Court, and any part of the sentence (or the manner in which that sen tence was determined), including any term of imprisonment and fine within the maximums provided by law, and including any order of restitution, in exchange for the concessions made by the United States in this Agreement.4 No. 1 9

- 3137

Th e judge confirmed Nulf ’s understa nding of the appeal waiver at the change

- of

- plea hearing. As anticipated, t he presentence report (“PSR”) recommended an offense level of 23, which includ ed a 3

- level reduction for acceptance of responsibility , and a criminal

- history category of I. T h ese calculations yielded an advisory G uidelines range of 46

– 57 months in prison , but the sentence was capped at the statutory maximum of 12 months. Nulf’s only objection to the PSR concerned a recommended condition permitting a probation officer to visit her at work during supervised release

. Sentencing proceeded uneventfully until Nulf ’s allocution

. She explained at length that the criminal case had been financially and personally devastating for her and her family and expressed a desire to be “a good person.” Eventually the judge interjected , leading to the following exchange:
THE COURT: It seems to me that you have yet to acknowledge what you did.
THE DEFENDANT: I have acknowledged.
THE COURT: What did you do?
THE DEFENDANT: I didn’t pay attention to what was going on and allowed

— I was verysloppy about what went in, didn’t pay attention, and incorrect information went in, and that is my responsibility.
THE COURT: What did you do?
THE DEFENDANT: I did not pay a ttention onthe loan applications and so there was incorrect information on the loan applications thatNo. 1 9

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were processed and closed. That is my responsibility.
Based on th ese responses , t he judg e determined that Nulf had n o t really accepted responsibility for her crime and removed th e 3

- level reduction for acceptance of responsibility from the Guidelines calculation. T he new offense level

was 26 , increasing the advisory Sentencing G uidelines range to 63

– 78 months

. This was all academic, of co urse; the sentence was limited by the one

- year statutory maximum

. The judge imposed the one

- year sentence as contemplated by the plea agreement

. II. Discussion Nulf asks us to ignore her appeal waiver because the judge interfered with her right of allocut ion and wrongly depriv ed her of credit for accepting responsibility . She also seeks review of several other claim ed error s at sentencing

. But this case does not fit within the narrow set of circumstances in which we’ve recognized an equitable exception to an otherwise enforceable appeal waiver. As a general matter, an appeal waiver must be enforce d if its “terms are express and unambiguous , and the record shows that the defendant knowingly and voluntarily entered into the [ plea ] agreement.” United States v. Haslam , 833 F.3d 840, 844 (7th Cir. 2016) (alteration in original) (quotation marks omitted). In other words, a n appeal waiver stands or falls with the underlying agreement and plea

. If the agreement and guilty plea are valid , so too is the appeal waiver. Id. We have declined to enforce an otherwise valid appeal waiver only in a few limited circumstances

— for example, “when the sentence exceeds the statutory maximum, when6 No. 1 9

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the plea or court relies on a constitutionally impermissiblefactor like race, or when counsel is ineffective in the negotiation of the plea agreement.” Dowell v. United States , 694 F.3d 898, 902 (7th Cir. 2012).
Nulf concedes that her appeal waiver was express and unambiguous, and that she knowingly and voluntarily entered into it. She does not challenge the validity of her guilty plea. That is the end of the matter . T he waiver must be enforced unless one of the narrow exceptions applies , and Nulf does not argue

— nor could she

— that her case falls within any of the exceptions we’ve just listed . She argues instead that our decision in Litos recognized a gener al “miscarriage of justice” exception and that her case qualifies under it

. Th is argument misreads Litos . That case involv ed a bank

fraud scheme by three coconspirator s. T wo were found guilty by a jury, but the third, Minas Litos, pleaded guilty and waived his right to appeal. 847 F.3d at 910. The three defendants appealed, challenging (among other things) the judge’s imposition of approximately $900,000 in restitution , for which the three were jointly and severally liable

. We agreed that the restitution order cou ld not stand be cause the victim, a large bank, had been reckless and therefore did “not have clean hands.” Id

. at 907

– 08 . That ruling , of course, lifted the restitution obligation from the defendants who were convicted a t trial

. But because Litos pleaded guilty and waive d his right to appeal, he remain ed on the hook and solely respo nsible for the entire amount

. Id

. at 910. In that unusual situation , we declined to enforce the appeal waiver and relieved Litos of his obligation to pay under the invalid restitution order. Id

. at 910

– 11.No. 1 9

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Along the way to that holding, we noted that some circuits decline to enforce appeal waivers if doing so would result in a “ miscarriage of justice

. ” Id

. at 910. But we did not adopt a general miscarriage

- of

- justice exception for this circuit

. To the contrary, we reiterated our circuit’s longstanding recognition of only a limited set of exceptional situations in which wa iver does not foreclose appellate review

— for example[,] if an appeal waiver is part of a plea agreementthat was involuntary, or if the district court relied on a constitutionally impermissible factor,or if the defendant received ineffective assistance of counsel in regard to the negotiation of the plea agreement, or if the sentence exceeded the statutory maximum.
Id

. And we emphasized that these exceptions “are narrow.” Id

. at 911. In short, Litos addressed a unique situation and did not announce a new and amorphous miscarriage

- of

- justice standard for setting aside an otherwise enforceable appeal waiver. See Oliver v. United States , 951 F.3d 841, 847 (7th Cir. 2020) (explaining the limits of Litos ); United States v. Carson , 85 5 F.3d 828, 831 (7th Cir. 2017) (same). Because Nulf ’s appeal waiver is valid and enforceable, t h is appeal is

D ISMISS ED

.