In the

United States Court of Appeals

For the Seventh Circuit

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No. 03-1622

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JOSHUA N. EMERSON,

Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Illinois.

No. 01 CR 30023—David R. Herndon, Judge.

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ARGUED SEPTEMBER 26, 2003—NOVEMBER 18, 2003

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Before FLAUM, Chief Judge, and BAUER and MANION,

Circuit Judges.

BAUER, Circuit Judge. In March 2001, Emerson was

charged with being a felon in possession of a firearm. In

May of that year he entered into a cooperative plea agreement whereby he agreed to provide the government with

any information he might have concerning other criminal

activity. In exchange the government agreed to consider

filing a motion to reduce his sentence pursuant to Federal

Rule of Criminal Procedure 35(b). After Emerson gave the

government information, the government decided not to

petition for his sentence reduction. Emerson appeals. We

affirm.
2 No. 03-1622

1 Federal Rule of Criminal Procedure 35(b) provides that:

Upon government’s motion made within one year of sentencing, the court may reduce a sentence if:

(A) the defendant, after sentencing, provided substantial assistance in investigating or prosecuting another person; and

(B) reducing the sentence accords with the Sentencing

Commission’s guidelines and policy statements.

I. Background

The government frequently makes cooperating plea

agreements with defendants who they believe have knowledge of criminal activity that would be helpful to the government in further investigations. Normally, under these

agreements, the government receives information from the

prisoner and then makes a determination as to whether the

information given by the prisoner is truthful and helpful. If

the government finds that the information is of “substantial

assistance” it may choose to file the motion under Rule

35(b) to reduce the prisoner’s sentence.1

In this case, Emerson entered into such a plea agreement.

Among other things, the agreement provided that Emerson

would plead guilty, waive his right to appeal, and would

provide the government with whatever information he had

regarding criminal activity. The agreement also provided

that once Emerson did all these things, the government

would have “sole discretion” as to whether it would file the

Rule 35 motion for a reduction of sentence. (Brief for

Appellee at app. B8.) After Emerson gave the government

information about two drug dealers, the government did not

immediately file a Rule 35 motion; Emerson’s attorney then

contacted the government to let them know that the one

year time limit on filing the motion was approaching. In

response, the government filed a Rule 35 motion to avoid

the upcoming deadline but asked the district court not to
No. 03-1622 3

rule on it until the government had a chance to assess

whether the information Emerson had provided was indeed

truthful and of substantial assistance. The government

determined that Emerson had not been truthful in his

information and later told Emerson’s attorney that the

information had not been of substantial assistance. The

government then moved to withdraw its Rule 35 motion,

and that motion was granted. Counsel for the defendant

then filed a motion asking the district court to reconsider

allowing the government to withdraw its Rule 35 motion

and requested an evidentiary hearing.

II. Discussion

Emerson fails in his appeal for two reasons: first, he

waived his right to appeal his sentence and second, the

government did not abuse its discretion when it determined

that Emerson did not provide substantial assistance.

A. Waiver

The validity of a waiver agreement is reviewed de novo.

United States v. Jones, 167 F.3d 1142, 1144 (7th Cir. 1999).

Generally, waivers of appeal are enforceable. United States

v. Kratz, 179 F.3d 1039, 1041 (7th Cir. 1999). A waiver is

binding so long as the terms of the waiver are unambiguous

and it was made “knowingly and voluntarily.” Jones, 167

F.3d at 1144 (quoting United States v. Wooley, 123 F.3d 627,

632 (7th Cir. 1997)). In this case, the waiver agreement

Emerson entered into was explicit in the terms of his cooperative plea agreement. Specifically, Section II, Paragraph eleven of the agreement states,

[T]he Defendant knowingly and voluntarily waives the

right to appeal any sentence . . . (or the manner in

which that sentence was determined) on the grounds
4 No. 03-1622

set forth in Title 18, United States Code, Section 3742

or on any ground whatever . . . . The Defendant also

waives his right to challenge his sentence or the manner in which it was determined in any collateral attack

. . . .

(Brief for Appellee at app. B8.) Emerson does not contend

that the waiver was non-binding but argues that his specific

appeal is not covered by the waiver. The language of the

waiver is clear; it bars Emerson from appealing his sentence on “any ground whatever.” Such language must

include appeals regarding reductions in sentence for cooperating with the government.

B. Governmental Discretion

Even if Emerson had not waived his right to appeal his

sentence, he has no cause to complain. Under the terms of

the agreement, the government retained “sole discretion” as

to whether to file a Rule 35 motion. (Brief for Appellee at

app. B8.) In considering such agreements, the Supreme

Court has upheld the government’s discretion unless the

refusal to file the motion was based on religious or racial

grounds, or if the refusal “was not rationally related to any

legitimate government end.” Wade v. United States, 504

U.S. 181, 185-86 (1992). 

Emerson does not argue that the decision was motivated

by improper racial or religious motivations but instead

argues that it was not rationally related to any legitimate

governmental end. Emerson points out that the government

offered inconsistent reasons for its decision not to request

the downward departure when it initially stated that he

had lied, and then later, that he had not provided substantial assistance. Emerson is also miffed at the government’s

slow and seemingly disorganized manner of handling the

motion for downward departure. Although the government
No. 03-1622 5

could have been more attentive to Emerson’s situation, this

does not meet the high standard necessary to show an

absence of a rational basis. By the nature of the plea

agreement, the government must make a judgment call as

to whether “substantial assistance” has been rendered.

Given the discretion afforded to the government and its

explanation for its decision, it is of little importance that

the government provided differing reasons for not recommending a downward departure. Emerson failed to demonstrate that the government’s actions were not rationally

related to a legitimate end.

For this reason, we AFFIRM.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—11-18-03