In the

United States Court of Appeals

For the Seventh Circuit

No. 09-2053

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DEWAYNE EUGENE WHITE,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Indiana, Hammond Division.

No. 2:08-CR-00003-JTM—James T. Moody, Judge.

ARGUED JANUARY 15, 2010—DECIDED MARCH 5, 2010

Before WOOD, EVANS, and SYKES, Circuit Judges.

EVANS, Circuit Judge. Pursuant to a written plea agreement with the government, Dewayne White pled guilty

to one count of distributing crack cocaine. After the plea

was accepted by the judge, but before sentencing, both

parties learned that White’s criminal history made him

ineligible for a “safety valve” reduction, which, in turn,

negated the practical effect of the two other reductions

the government had agreed to support. Upon learning
2 No. 09-2053

this news, White filed a motion seeking to withdraw his

plea on the basis of this “mutual mistake.” The government opposed the motion, arguing that the plea should

stand because the “mutual mistake” did not affect the

essential terms of the agreement and because White

knew that the safety valve reduction might not apply.

The district judge sympathized with White but denied

his request. White now appeals.

Back in December 2007, DEA agent Antonio Smith

was working undercover with a confidential informant

to make a controlled purchase of crack cocaine. Smith

and the informant went to Quintin Lee’s residence in

Hammond, Indiana, to make the purchase. Lee then

telephoned White, who said that he would bring the

crack to Lee. White then called his codefendant, Anthony

Moton, who agreed to cook up the crack and have it

available. White and Moton drove to Lee’s house

together and parked behind Smith’s vehicle. Lee entered

Moton’s vehicle, and Moton handed him 51.9 grams of

crack cocaine. Lee returned to Smith’s vehicle, gave

Smith the drugs, and obtained $1,500 of buy money from

Smith. Lee gave Moton and White $1,300 of the buy

money before returning to his house. After Moton and

White drove away, the Hammond police performed a

traffic stop. White jumped out of the moving car and

fled on foot but was eventually apprehended. A digital

scale was found in his possession.

Shortly thereafter, White was indicted on one count of

knowingly and intentionally distributing fifty or more

grams of crack cocaine, in violation of 21 U.S.C. § 841(a)(1).
No. 09-2053 3

To the extent that White’s mutual mistake argument, if 1

successful, would result in setting aside the plea agreement as

a whole, we entertain it despite the appeal waiver. See United

States v. Cieslowski, 410 F.3d 353, 361-62 (7th Cir. 2005).

A few months later, White reached a plea agreement

with the government. The plea agreement outlined the

various rights White would be waiving by pleading

guilty, including the right to request documents relating

to his case from the government and the right to

appeal his conviction or sentence. The agreement also 1

detailed the government’s promises as follows:

C. The United States of America and I have also

entered into the following agreements which are

not binding upon the Court, and I understand

that if the Court does not follow these agreements

I will not be allowed to withdraw my guilty plea;

a. In recognition of my acceptance of responsibility for my offense conduct, I am entitled to a

two point and, if eligible, an additional one

point reduction in offense level for acceptance

of responsibility; however, the government is

not obligated to recommend I receive the acceptance of responsibility adjustment if I deny

my involvement in the offense, give conflicting statements of my involvement, or engage in additional criminal conduct including

any personal use of controlled substances;

b. The United States of America and I agree that

I am responsible for between 50 and 150 net

grams of crack;
4 No. 09-2053

c. The United States of America and I agree that

if my criminal history qualifies me for safety valve

treatment, and if I satisfy the provision of the

safety valve statute pertaining to providing

information to the government, then the government will recommend that I am eligible

for a two-level reduction under the U.S. Sentencing Guidelines pursuant to sections

2D1.1(b)(9) and 5C1.2(a) and 18 U.S.C. section

3553(f);

d. The United States of America and I agree that

I was a minor participant in the charged criminal activity and that I am eligible for a twolevel reduction under the U.S. Sentencing

Guidelines pursuant to section 3B1.2(b);

e. The United States of America recommends that

the Court should impose a sentence upon me

equal to the minimum of the applicable guideline range[.]

(Emphasis added.)

“Safety valve” treatment was the key to avoiding the 10-

year mandatory minimum sentence for White’s crime.

With the additional reductions for “acceptance of responsibility” and being a “minor participant,” White could

have received a sentence as low as 46 months. Despite

the government’s promises, the plea agreement also

noted that the possible penalty that could be imposed

upon White was a mandatory minimum of 10 years

imprisonment and that White’s actual sentence would

be determined by the court after an investigation by
No. 09-2053 5

the U.S. Probation Office and consideration of the

U.S. Sentencing Guidelines.

At his plea hearing, the district judge questioned

White regarding his understanding of the agreement.

When asked when he last reviewed the plea agreement

with his lawyer, White replied, “Just before the hearing,

sir.” He also agreed that the agreement was “[p]retty

fresh” in his mind. White responded “Ten years” when

asked “What’s your understanding of the mandatory

minimum term of imprisonment that you’re facing for

this crime, the lowest point?” The judge and White

also specifically discussed the safety valve reduction

as follows:

Q. You and the Government have also agreed that

the Government will make a nonbinding recommendation at sentencing that you, if you qualify,

receive the benefit of what’s called a safety

valve; is that right?

A. Yes, sir.

Q. And if you do receive that, as I understand it,

that would take him out of the mandatory

minimum ten-year term of imprisonment?

[White’s counsel]: That’s correct, Your Honor.

Q. And you understand that?

A. Yes, sir.

(Emphasis added.) White also acknowledged that the

judge was “not going to be able to determine the advisory

guideline sentence for [White] until after a presentence
6 No. 09-2053

Indeed, at the plea hearing, the district judge asked the 2

government’s counsel if she had reviewed White’s criminal

history, and she responded in the affirmative. We are unclear

how the mistake was made, but we trust that the government does not go around promising to recommend reductions

that it knows will not be available.

report has been completed.” The court eventually

accepted White’s guilty plea, with both parties apparently

believing that he would be eligible for safety valve treatment.2

A few months later, the probation office released its

presentence report. The report indicated that White had

been convicted of two misdemeanors for marijuana

possession, giving him two criminal history points. These

criminal history points made White ineligible for

safety valve treatment, which, in turn, prevented the

two additional reductions the government had agreed to

support from having any practical effect. As a result,

White’s sentencing range was 120 to 135 months.

Upon seeing the report, White moved to withdraw his

guilty plea. He argued that the parties made a “mutual

mistake” that his criminal history score would qualify

him for safety valve treatment. White also contended

that, because no one explained to him that his failure to

qualify for safety valve treatment would also render the

other reductions ineffective, he did not enter his plea

“knowingly and intelligently.” The district judge, however, found that the “mutual mistake” did not amount to

a “fair and just reason” to invalidate the guilty plea and
No. 09-2053 7

that the plea was “knowingly and intelligently” made. The

court sentenced White to the mandatory minimum of

120 months imprisonment.

We review the district court’s denial of White’s motion

to withdraw his guilty plea for an abuse of discretion.

United States v. Silva, 122 F.3d 412, 414-15 (7th Cir. 1997).

After a guilty plea is accepted but before sentencing,

a defendant may withdraw his plea upon showing a

“fair and just reason” for doing so. Fed. R. Crim. P.

11(d)(2)(B). But if (as here) the district court conducted

a thorough Rule 11 colloquy, the defendant seeking

withdrawal faces an “uphill battle.” United States v.

Bennett, 332 F.3d 1094, 1099 (7th Cir. 2003).

Because plea agreements are governed by ordinary

contract principles, a theory of mutual mistake may

provide a basis for invalidating an agreement. United

States v. Barnes, 83 F.3d 934, 938 (7th Cir. 1996). To

provide such a basis, however, the mutual mistake

must affect the “essential parameters” of the guilty

plea, such as “[t]he nature of the charge to which the

defendant pleads, the factual basis for the plea and the

limits of the district court’s sentencing authority . . . .”

Id.; see also Cieslowski, 410 F.3d at 362 (“[T]he mistake

of both parties must go to ‘a basic assumption on which

the contract was made [which] has a material effect on

the agreed exchange of performances.’ ”) (citing Restatement Second of Contracts § 152(1)). Critically, “[t]he

precise nature of the punishment that will be imposed

after a plea is effected is not always an essential term of

the plea agreement,” although it can be, if “the guilty plea
8 No. 09-2053

White does argue that there was a failure of consideration 3

because, “while the government received a mother lode of

benefits by virtue of its agreement with White, White received absolutely nothing by virtue of his agreement with

the government.” As the district court found, however, the

government did not promise a specific result, and White

does not contend that the government failed to carry out its

promises.

is exchanged for the imposition of a specific sentence . . . .”

Barnes, 83 F.3d at 938; see Fed. R. Crim. P. 11(c)(1)(C).

The mutual mistake here led both parties to believe

that White would be eligible for safety valve treatment

and, as a result, a sentence below the statutory minimum

could be imposed. This incorrect estimation does not

affect the essential terms of White’s plea, however, because

it was not exchanged for the imposition of a specific

sentence. Rather, the essential parameters of the agreement were that White would plead guilty to the one

count, give up his right to request records from the government and his right to appeal his sentence, and

receive favorable, nonbinding recommendations from

the government, including that the court impose a sentence at “the minimum of the applicable guideline

range.” White does not argue that there was a mutual

mistake about (or breach of) these terms.3

The mutual mistake also did not affect the essential

parameters of the plea because both the plea agreement

and the district court specifically addressed the contingency regarding safety valve treatment. In the plea agreement, White agreed that the government would recom-
No. 09-2053 9

mend that he was eligible for a two-level reduction “if

my criminal history qualifies me for safety valve treatment . . . .” And during the plea hearing, the district judge

asked White if it was correct that “the Government will

make a nonbinding recommendation at sentencing that

you, if you qualify, receive the benefit of what’s called a

safety valve . . . ?” and White answered, “Yes, sir.”

Thus, the mistake was not about an essential term of

the agreement but rather about the possible sentence,

which generally does not support the withdrawal of a

guilty plea. See United States v. Bowlin, 534 F.3d 654, 660

(7th Cir. 2008) (“We have repeatedly held that the fact

that a defendant underestimated his sentence when

entering his plea is not a fair and just reason to permit

him to withdraw that guilty plea.”) (internal quotation

marks omitted).

White also argues that, because he was not specifically

warned that ineligibility for safety valve treatment would

render the government’s other recommendations ineffective, his plea was not “knowingly, voluntarily, and

intelligently” made. The district court found that the

record contradicted White’s assertion that he was

unaware of the consequences of his plea. We agree.

A defendant may withdraw his plea if it was not entered

into knowingly, voluntarily, and intelligently “with

sufficient awareness of the relevant circumstances and

likely consequences.” See Bradshaw v. Stumpf, 545 U.S. 175,

182-83 (2005); United States v. Wallace, 276 F.3d 360, 366

(7th Cir. 2002). Voluntary responses made by a defendant

under oath before an examining judge, however, are
10 No. 09-2053

binding. United States v. Ellison, 835 F.2d 687, 693 (7th

Cir. 1987). Accordingly, a guilty plea after a Rule 11

colloquy enjoys “a presumption of verity.” Bennett, 332

F.3d at 1099.

Here, the plea agreement specifically stated that the

government would recommend a two-level reduction if

White was eligible for safety valve treatment, which

depended on his criminal history. The agreement

further noted that the possible penalty that could be

imposed was a mandatory minimum of 10 years imprisonment and that the actual sentence would be determined by the court after an investigation by the probation office and consideration of the sentencing guidelines.

The judge followed up on these agreements at the plea

hearing, where White specifically acknowledged that

(1) the mandatory minimum term was 10 years; (2) if he

qualified, he could receive safety valve treatment, which

was the key to avoiding the mandatory minimum; and

(3) the judge could not determine the applicable advisory

guideline sentence until after the presentence report

was completed. Of course, the warnings could have

been more specific. But White cites no case law to support that, without a more thorough warning, his plea

was not “knowingly, voluntarily, and intelligently”

made. Cf. United States v. Knorr, 942 F.2d 1217, 1220 (7th

Cir. 1991) (“[T]he judge is not required to, and often

cannot, at the time the plea is tendered, inform the defendant of the effects the application of the Sentencing

Guidelines will have on the sentence.”).

Like the district court, we too sympathize with White.

But had he been allowed to withdraw his plea, a subse-
No. 09-2053 11

quent guilty verdict by a jury looks here like it would

have been a foregone conclusion. And then he might

have received a sentence of even more than 10 years.

Because the agreement did not promise a specific sentence, and the record shows that White knew the

possible consequences of his plea, the district judge

did not abuse his discretion in denying White’s motion.

For these reasons, since we reject White’s attempt to set

aside the plea agreement, the appeal waiver stands and

we must dismiss his appeal for want of jurisdiction.

APPEAL DISMISSED.

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