In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 04-1923

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JOHN A. COOK,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 01 CR 144—William C. Griesbach, Judge.

____________

ARGUED MARCH 31, 2005—DECIDED APRIL 29, 2005

____________

Before FLAUM, Chief Judge, and POSNER and EVANS, Circuit

Judges.

POSNER, Circuit Judge. The defendant pleaded guilty to

conspiracy to distribute the illegal drug “ecstasy” and was

sentenced to serve 188 months in prison and to pay the

government $4,725 in restitution. He challenges his sentence

on several grounds, including the ubiquitous Booker ground;

and the government concedes that he is entitled to the

limited remand authorized by our decision in United States

v. Paladino, 401 F.3d 471, 483-84 (7th Cir. 2005); see also

United States v. Spano, 401 F.3d 837, 842 (7th Cir. 2005);
2 No. 04-1923

United States v. Askew, 2005 WL 757381, at *11-12 (7th Cir.

Apr. 5, 2005); United States v. Coles, 2005 WL 783069, at *5-7

(D.C. Cir. Apr. 8, 2005) (per curiam). The question is

whether he is entitled to more.

The plea agreement provides in language that could not

be clearer that “the government agrees to recommend to the

sentencing court that the defendant receive a two-level

decrease for acceptance of responsibility under Sentencing

Guidelines Manual §3E1.1(a).” In compliance with the

agreement, the government so recommended, and at the

sentencing hearing the defendant’s own lawyer said that his

client was seeking a two-level decrease, and that is what the

judge gave him. The defendant now claims that he’s entitled

to a three-level decrease. And it is true that the guidelines at

the time he was sentenced would have entitled him to a

three-level decrease had he asked for it. U.S.S.G. § 3E1.1(b)

(2002); United States v. Garrett, 90 F.3d 210, 213-14 (7th Cir.

1996); United States v. Townsend, 73 F.3d 747, 755-56 (7th Cir.

1996); United States v. Blanco-Gallegos, 188 F.3d 1072, 1076-77

(9th Cir. 1999); United States v. McPhee, 108 F.3d 287 (11th

Cir. 1997). But the government contends that by asking for

the two-level decrease the defendant’s lawyer waived any

claim to the third level. The defendant denies there was a

waiver but acknowledges that by failing to ask for the third

level he forfeited the point and can be relieved from the

forfeiture only if the denial of the third level was a plain

error.

A forfeiture is basically an oversight; a waiver is a deliberate decision not to present a ground for relief that might

be available in the law. United States v. Olano, 507 U.S. 725,

732-34 (1993); United States v. Redditt, 381 F.3d 597, 602 (7th

Cir. 2004); United States v. Williams, 258 F.3d 669, 672 (7th

Cir. 2001); United States v. Rodriguez, 311 F.3d 435, 437 (1st

Cir. 2002). If the plea agreement had made no reference to
No. 04-1923 3

acceptance of responsibility and the defendant’s lawyer had

not asked for an acceptance-of-responsibility sentencing

discount, that would be forfeiture. And likewise if he had

asked, but had not indicated how many levels he wanted.

But the plea agreement showed he’d negotiated for a government recommendation of two levels, and at the sentencing hearing he asked for two levels. To ask for two levels is

deliberately not to ask for three. Any doubt on this score is

dispelled by the provision of the plea agreement that “both

parties reserve the right to make any recommendation

regarding any other matters not specifically addressed by

this agreement.” The number of levels for acceptance of

responsibility was specifically addressed, so the defendant

had no right to make a variant recommendation; and he

didn’t.

Of course it may have been a mistake to ask for two rather

than three levels. But a waiver can rest on a mistake.

Suppose you ordered a hamburger, and it was served to

you, and it was smaller than you expected and you decided

you’d made a mistake ordering only one. You couldn’t

argue with a straight face that you hadn’t intended to order

only one hamburger, that it was an oversight on your part.

The plea agreement in this case states among other things

that the defendant is waiving his right to trial by jury. Suppose he waived it because his lawyer told him that in the

Northern District of Illinois, owing to a shortage of jurors,

baboons from Brookfield Zoo are regularly empanelled to

fill out criminal juries. The waiver would be based on a

profoundly mistaken premise, and the defendant would be

entitled to relief, but it would not be because he hadn’t

waived his right to trial by jury; it would be because the

conviction based on the plea agreement was invalidated by

the ineffective assistance rendered him by his lawyer, United

States v. Bownes, No. 03-3016, slip op. at 5 (7th Cir. Apr. 26,
4 No. 04-1923

2005), and cases cited there, provided he could show that if

correctly advised he would not have entered the plea. Hill v.

Lockhart, 474 U.S. 52, 58-59 (1985); United States v. Standiford,

148 F.3d 864, 869-70 (7th Cir. 1998). If the defendant’s

lawyer had no tactical reason to give up the third level—if

the government made no reciprocal concession elsewhere in

the agreement—the defendant might be able to demonstrate

ineffective assistance of counsel. But he does not seek relief

on that basis.

There are other grounds for rescinding a plea agreement

besides ineffective assistance of counsel, such as mutual mistake. A plea agreement is a contract, and like any contract

can be rescinded on the basis of such a mistake. United States

v. Bradley, 381 F.3d 641, 648 (7th Cir. 2004); United States v.

Williams, 198 F.3d 988, 993-94 (7th Cir. 1999); United States v.

Sandles, 80 F.3d 1145, 1148 (7th Cir. 1996); see also United

States v. Lewis, 138 F.3d 840, 841-43 (10th Cir. 1998). It is not

just a contract; it is also a stage in a criminal proceeding. That

is why, as we noted in our recent decision in Bownes, some

defenses that would not be available in a suit to enforce an

ordinary contract, such as ineffective assistance of counsel,

are available in a contest over the enforceability of a plea

agreement. A defendant who has signed a plea agreement

has all the defenses he would have under contract law, plus

some.

But our defendant isn’t seeking rescission of the plea agreement. For that matter, he has presented no evidence that

there was a mistake about the acceptance-of-responsibility

sentencing discount, mutual or otherwise, rather than a deal

under which he got something in exchange for forgoing the

third level. He wants the benefit of all the provisions of the

agreement plus one additional sentencing discount. But if

the mistake was mutual, why should he benefit from it and

the government bear the entire cost of the mistake? When a
No. 04-1923 5

contract is rescinded, the parties are put back where they

were before there was a contract. “Rescission, simply stated,

is the unmaking of a contract. It is a renouncement of the

contract . . . and places the parties, as nearly as possible, in

the same situation as existed just prior to the execution of

the contract.” United States v. Gregory, 245 F.3d 160, 166 (2d

Cir. 2001), quoting Kavarco v. T.J.E., Inc., 478 A.2d 257, 261

(Conn. App. 1984). A plea agreement is the same. E.g.,

United States v. Williams, supra, 198 F.3d at 993-94; United

States v. Ramunno, 133 F.3d 476, 484 (7th Cir. 1998); United

States v. Ballis, 28 F.3d 1399, 1409-10 (5th Cir. 1994); see

generally United States v. Scruggs, 356 F.3d 539, 544-46 (4th

Cir. 2004). We see now that by his expansive notion of

“waiver,” the defendant is seeking to avoid the limitations

that contract law and criminal law alike place on efforts to

obtain one-sided benefits by challenging a plea agreement.

As part of its investigation of the defendant, the government had made controlled purchases from him—that is, had

given informants marked money to buy drugs from him

and the informants had paid him this money, a total of

$7,675. Naturally the government wanted its money back

and the defendant agreed in the plea agreement to pay it

back. (The government found some of the marked money,

and so reduced its demand to $4,725.) The defendant now

claims that he shouldn’t have to pay because the government seized $6,710 in a lawful search of his home. That is,

he’s claiming a setoff. In re Doctors Hospital of Hyde Park, Inc.,

337 F.3d 951, 955 (7th Cir. 2003); Selcke v. New England Ins.

Co., 995 F.2d 688, 690-91 (7th Cir. 1993); Nashville Lodging Co.

v. Resolution Trust Corp., 59 F.3d 236, 246 (D.C. Cir. 1995);

United Structures of America, Inc. v. G.R.G. Engineering, S.E., 9

F.3d 996, 997-98 (1st Cir. 1993).

There is no inconsistency between your owing a sum of

money and claiming not to have to pay it because the
6 No. 04-1923

intended recipient owes you more and should just deduct it

from what you owe him and remit the difference to you. In

other words, a claim to a setoff is not a repudiation of an

obligation and so need not be inconsistent with a plea

agreement; it could just be a means by which the defendant

proposed to honor an obligation created by the agreement.

But our defendant is not claiming a setoff; he is seeking to

rewrite the plea agreement, again without seeking rescission. In fact, he can’t claim a setoff. To do so would require

him to establish his right to the money that the government

seized from him when it searched its home. That in turn

would require him, in a case such as this in which there

has been no administrative or judicial forfeiture, to file a

motion under Fed. R. Crim. P. 41(g) for the return of the

money. E.g., In re Search of 2847 East Higgins Road, 390 F.3d

964, 965-66 (7th Cir. 2004); United States v. Morgan, 384 F.3d

439, 444 (7th Cir. 2004); Okoro v. Callaghan, 324 F.3d 488, 490-

91 (7th Cir. 2003); United States v. Felici, 208 F.3d 667 (8th

Cir. 2000). The defendant has not done that. He could not.

The money was found in his home together with a large

quantity of illegal drugs, a digital scale, and other evidence

of drug trafficking. Clearly the money was proceeds from

the sale of drugs, and as such expressly forfeitable, 21 U.S.C.

§ 881(a)(6), and hence not his lawful property. E.g., United

States v. Dusenbery, 223 F.3d 422, 425 (6th Cir. 2000) (per

curiam). So it couldn’t be the basis of a setoff.

The government concedes, however, that the duty to repay the buy money should have been made a condition of

supervised release rather than being embodied in an order

of restitution. The buy money was an investigatory expense

rather than property taken from, or damage to the property

of, a victim of the defendant’s crime. United States v. Brooks,

114 F.3d 106, 108 (7th Cir. 1997); United States v. Daddato, 996

F.2d 903 (7th Cir. 1993); see also Gall v. United States, 21 F.3d
No. 04-1923 7

107, 111-12 (6th Cir. 1994); United States v. Salcedo-Lopez, 907

F.2d 97 (8th Cir. 1990); see generally United States v. Scott,

No. 04-1053, slip op. at 4-6 (7th Cir. Apr. 25, 2005). Either

way, the government is entitled to the return of the money.

But the defendant is better off owing the money as a

condition of supervised release; for example, it means he

doesn’t have to pay it until his period of supervised release

begins, and thus after he is released from prison, whereas a

judge may order restitution to be paid in full immediately

upon sentencing. 18 U.S.C. §§ 3664(f)(2), (3); United States v.

Sensmeier, 361 F.3d 982, 991 (7th Cir. 2004); United States v.

Jones, 289 F.3d 1260, 1265-66 (11th Cir. 2002) (per curiam);

United States v. Martin, 278 F.3d 988, 1006 (9th Cir. 2002).

The order of restitution is modified as indicated in the

preceding paragraph, and with respect to the prison sentence a limited remand is ordered in accordance with the

Paladino decision.

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—4-29-05