In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 03-2890

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

PAUL CIESLOWSKI,

Defendant-Appellant.

____________

Appeal from the United States District Court for

the Northern District of Illinois, Eastern Division.

No. 01 CR 455—John W. Darrah, Judge.

____________

ARGUED SEPTEMBER 8, 2004—DECIDED JUNE 1, 2005

____________

Before POSNER, RIPPLE, and WOOD, Circuit Judges.

WOOD, Circuit Judge. It is common for criminal prosecutions to be resolved by the defendant’s plea of guilty, but

not all guilty pleas are alike. Usually in federal court,

defendants enter the type of plea that leaves the court free

to set whatever sentence it believes is proper, under the

law. It is also possible, however, for the plea agreement to

specify a particular sentence that both the defendant and

the government agree is appropriate. See FED. R. CRIM. P.

11(c)(1)(C). That is the kind of plea agreement we have

before us in Paul Cieslowski’s appeal. He pleaded guilty to

engaging in sexually explicit conduct with a minor for the
2 No. 03-2890

purpose of producing a visual depiction of the conduct and

agreed in his plea agreement to a sentence of 210 months’

imprisonment. The district court accepted this plea and

sentenced Cieslowski to the agreed term.

Cieslowski later had second thoughts and decided to appeal. He now claims that his plea agreement was the result

of ineffective assistance of counsel, because the agreed-upon

term of imprisonment resulted from his lawyer’s mistaken

calculation under the federal Sentencing Guidelines. After

the Supreme Court decided Blakely v. Washington, 124

S.Ct. 2531 (2004), he added a claim that his sentence rested

on a violation of the Sixth Amendment. We conclude that

counsel’s performance did not fall below the threshold of

constitutionally sufficient assistance, nor can Cieslowski

show prejudice under these circumstances, and thus he is

not entitled on this theory to have his plea agreement set

aside. We also find no merit in his other challenges to the

plea agreement and the sentence. Finally, we conclude that

there are significant differences for purposes of United States

v. Booker, 125 S. Ct. 738 (2005), between a sentence that

results from a Rule 11(c)(1)(C) plea agreement and other

sentences that the court computes independently under the

Sentencing Guidelines. When the sentence the court imposes is legal under the governing statute and results from

the defendant’s explicit agreement, it is not affected by the

judge’s perception of the mandatory or advisory nature of

the Guidelines, and thus there is no need for a remand for

further proceedings. We therefore affirm.

I

In October 2000, detectives of the Cook County Sheriff’s

Police Child Exploitation Unit began investigating a person

who, through the use of a screen name, participated in

various Internet chat rooms devoted to child pornography.

The same individual also chatted with, and sent nude
No. 03-2890 3

pictures of himself to, an undercover police officer posing

online as a fourteen-year-old girl. A few months later the

detectives identified the screen name as belonging to Paul

Cieslowski. When detectives spoke with Cieslowski, he admitted using the screen name in the chat rooms and gave

written consent for a search of his home laptop computer.

Forensic examiners found in excess of 8,000 image files on

the laptop, most of which depicted minors engaged in sexually explicit conduct.

Cieslowski was arrested by state and federal agents and

indicted by a federal grand jury on ten counts: two counts

of engaging in sexually explicit conduct with a minor for the

purpose of producing visual depictions of the conduct, in

violation of 18 U.S.C. § 2251(a); one count of possessing

material containing images of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B); and seven counts of

knowingly receiving child pornography, in violation of 18

U.S.C. § 2252A(a)(2)(A). He was indicted separately in the

Circuit Court of DuPage County, Illinois, on charges of

predatory criminal sexual assault and possession of child

pornography stemming from the same facts and circumstances alleged in the federal indictment.

On December 6, 2001, Cieslowski pleaded guilty in the

federal case to one count of engaging in sexually explicit

conduct with a minor for the purpose of producing visual

depictions, in exchange for the government’s dismissal of

the other nine counts in the indictment. In the plea agreement, which was governed in part by what was then FED. R.

CRIM. P. 11(e)(1)(C), Cieslowski stipulated to the conduct

alleged in the dismissed counts and agreed that this conduct

would play a role in determining his sentence. (In 2002,

Rule 11(e)(1)(C) was renumbered as Rule 11(c)(1)(C).

Because nothing of substance was changed, we use the

current numbering in this opinion.)

Using the 2000 Sentencing Guidelines manual, the parties

calculated Cieslowski’s offense level to be 35, resulting in a
4 No. 03-2890

guideline sentencing range of 168-210 months. The agreement stated that it was to be governed by what is now Rule

11(c)(1)(C). It therefore stated that “the parties have agreed

that the sentence imposed by the Court shall include a term

of imprisonment of 210 months in the custody of the Bureau

of Prisons. Other than the agreed term of incarceration, the

parties have agreed that the Court remains free to impose

the sentence it deems appropriate.” Consistent with Rule

11(c)(1)(C), the agreement also provided that “[i]f the Court

accepts and imposes the agreed term of incarceration set

forth, the defendant may not withdraw this plea as a matter

of right under [Rule 11]. If, however, the Court refuses to

impose the agreed term of incarceration set forth herein,

thereby rejecting the Plea Agreement, or otherwise refuses

to accept the defendant’s plea of guilty, this Agreement shall

become null and void and neither party will be bound

thereto.”

Shortly thereafter, Heather Winslow, who had been serving as Cieslowski’s counsel, withdrew from the case and

current counsel was appointed. On June 18, 2002,

Cieslowski filed a motion to withdraw his guilty plea,

arguing that it was involuntary because it had been induced

by ineffective assistance of counsel. He contended that

Winslow’s failure to file two suppression motions prior to

pursuing the plea agreement was an error that left him no

choice but to enter his plea. After holding an evidentiary

hearing, the district court denied the motion.

Prior to sentencing, both parties acknowledged that they

had failed to catch an amendment to the Sentencing

Guidelines that affected the Guidelines range for

Cieslowski’s offenses. Under Amendment 615 to the Guidelines, which took effect on November 1, 2001 (a month prior

to Cieslowski’s guilty plea), the offense and conduct to

which Cieslowski stipulated would have resulted in an

offense level 33, for which the highest sentence would have
No. 03-2890 5

been 168 months—42 months less than the agreed upon

sentence. Cieslowski again moved to withdraw his plea.

On July 9, 2003, the court denied his motion and sentenced

him to 210 months. It also imposed a three-year term of

supervised release and ordered him to participate in mental

health aftercare, register as a sex offender, and avoid unsupervised contact with minor children. Cieslowski appealed,

claiming that his agreement to plead guilty was involuntary, and thus that he should be relieved from all aspects of

that plea (including, it should be noted, his waiver of the

right to appeal or to attack the judgment collaterally).

II

FED. R. CRIM. P. 11(b) requires the court to ensure, before

accepting a guilty plea, that the defendant entered into it

voluntarily. With this goal in mind, it requires the court to

address the defendant personally to determine that the plea

did not result from force, threats or promises other than

those memorialized in the plea agreement. Id. Once the court

accepts a guilty plea, a defendant does not have an absolute

right to withdraw it. To the contrary, the defendant must

present a “fair and just reason” for doing so. FED. R. CRIM. P.

11(d)(2)(B). We have commented that when “a defendant

wishes to withdraw his plea after he states at a Rule 11

hearing that it was given freely and knowingly, he faces an

uphill battle in persuading the judge that his purported

reason is fair and just.” United States v. Pike, 211 F.3d 385,

390 (7th Cir. 2000); see also United States v. Martinez, 169

F.3d 1049, 1054 (7th Cir. 1999) (“Because of the great

weight we place on these in-court statements, we credit

them over his later claims [that he would not have pleaded

guilty.]”). Cieslowski informed the court at his Rule 11

colloquy that he understood the terms of his plea and was

satisfied with his lawyer. With this in mind, we turn to the
6 No. 03-2890

reasons he now advances in support of his claim that his

plea was nonetheless involuntary.

Cieslowski argues that in agreeing to plead guilty, he

relied on the advice of his former counsel, Winslow. He contends that Winslow committed a series of errors, the net

result of which was to destroy the voluntariness of his plea.

Winslow’s alleged errors included her reliance on the wrong

version of the Sentencing Guidelines to calculate the sentence to which he ultimately agreed, her failure to file two

suppression motions, and her failure to advise the district

court of an oral agreement concerning a concurrent sentence in the state court proceeding.

We review an ineffective assistance of counsel claim

under the principles set forth in Strickland v. Washington,

466 U.S. 668, 687-91 (1984). This well-known test requires

proof of both inadequate performance and prejudice to the

defendant. Id. at 687. As applied in the plea bargaining

context, a defendant must show that counsel did not attempt to learn the facts of the case and failed to make a

good-faith estimate of a likely sentence. He must also show

that his lawyer’s deficiency was a decisive factor in his

decision to plead guilty. Martinez, 169 F.3d at 1053.

It is undisputed that both Winslow and the government

prosecutors failed to take Amendment 615 into account when

they computed Cieslowski’s sentence. The question is

whether Winslow’s error amounts to constitutionally deficient performance. We have held that “[a] gross mis-characterization of the sentencing consequences of a plea may

provide a strong indication of deficient performance, but it

is not proof of a deficiency. A defendant can prove that his

attorney’s performance was deficient if he shows that his

attorney did not make a good-faith effort to discover the

facts relevant to his sentencing, to analyze those facts in

terms of the applicable legal principles and to discuss that

analysis with him.” United States v. Barnes, 83 F.3d 934,
No. 03-2890 7

940 (7th Cir. 1996) (citation omitted). This is a stringent

standard, as one can see by reviewing cases in which it has

not been met. For example, we have held that counsel’s

inaccurate prediction of a sentence, see, e.g., Martinez, 169

F.3d at 1053, or failure to recognize issues of federal and

state jurisdiction, a distinction we characterized as “among

the most basic to our legal system, and even a reasonably

competent first year law student must be aware of it,” see

United States v. Teller, 762 F.2d 569, 577 (7th Cir. 1985), do

not amount to deficient performance. But see Moore v.

Bryant, 348 F.3d 238, 242 (7th Cir. 2003) (finding deficient

performance where erroneous advice regarding defendant’s

sentence stemmed from counsel’s failure to review the very

statute the advice was based on and counsel’s admission

that he was uncertain as to the statute’s effect on the case).

While Winslow’s error shows negligence on her part, there

is no evidence that her failure to spot Amendment 615 resulted from a lack of good-faith effort.

Moreover, even if the mistaken calculation amounted to

deficient performance because of the 42-month difference in

the high end of the Guideline range, see Glover v. United

States, 531 U.S. 198 (2001), Cieslowski has not satisfied the

prejudice requirement under the Strickland test. The

prejudice component focuses on whether counsel’s constitutionally deficient performance affected the outcome of the

plea process. It requires the defendant to “show that there

is a reasonable probability that, but for counsel’s errors, he

would not have pleaded and would have insisted on going to

trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985). The question

is thus not, as in Glover, whether an acknowledged mistake

in computing a sentence under the Guidelines is itself

prejudicial; it is whether the mistake affected the decision

to plead guilty.

In Hill, the claimed error was erroneous advice regarding

the defendant’s eligibility for parole under the agreed

sentence. Because the defendant “did not allege . . . that,
8 No. 03-2890

had counsel correctly informed him about his parole eligibility date, he would have pleaded not guilty and insisted

on going to trial,” the Supreme Court found that the prejudice requirement had not been met. Id. at 60. This court

has held that “a mere allegation by the defendant that he

would have insisted on going to trial is insufficient to establish prejudice.” Berkey v. United States, 318 F.3d 768, 772-

73 (7th Cir. 2003) (quoting Barker v. United States, 7 F.3d

629, 633 (7th Cir. 1993) (internal quotation marks omitted)). The defendant must go further and present objective

evidence that a reasonable probability exists that he would

have taken that step. Id. at 773.

Cieslowski argues that he was prejudiced by the miscalculation of his sentence because, had the proper Guidelines

been used, the plea agreement would have bound the court

to impose a lower sentence. He does not say, however, that

he would not have pleaded guilty but for the erroneous

advice. Nor, for that matter, does he offer any reason to think

that the government would have agreed to the Rule 11(c)(1)(C)

type of plea if the sentence had been 168 months instead of

210 months. At the sentencing hearing held on July 9, 2003,

the parties and the court had an extensive discussion of the

effect of Winslow’s error. The Assistant U.S. Attorney

pointed out that there was nothing illegal about the 210-

month sentence, if one took into account the power of the

court to depart upward from the Guidelines range. She

further noted that this was one of the worst child pornography cases that could be brought, as it involved manufacturing child pornography using a three-month old baby, and

assaulting the baby. In those circumstances, had this been

either an ordinary Rule 11(c)(1)(B) plea or had Cieslowski

been convicted after a trial, it is entirely possible that the

district court would have imposed the harsher sentence.

In short, Cieslowski has not shown that a reasonable

probability exists that he would have insisted on going to

trial but for the mistaken calculation. If convicted on all 10
No. 03-2890 9

counts after a trial, Cieslowski faced a possible maximum

sentence of 160 years, whereas by pleading guilty to one

count under § 2251(a), he avoided prosecution on the other

charges and limited his sentence to a statutory maximum

of 20 years. And the sentence Winslow negotiated in exchange for his guilty plea was less than the maximum sentence for that one count. On this record, we cannot conclude

that even if Winslow’s error amounted to deficient performance, Cieslowski would have insisted on going to trial

instead of entering into the plea agreement.

We can be more brief with Cieslowski’s claim that Winslow’s failure to file two suppression motions amounted to

ineffective assistance. He argues that Winslow should have

moved to suppress the images found on his computer

because his consent to the search was not voluntary. He

also argues that Winslow should have moved to suppress

his statements made at the time of his arrest because they

were obtained in violation of his Miranda rights.

Generally when an attorney articulates a strategic reason

for a decision, the court defers to that choice. See Strickland,

466 U.S. at 690-91. If an attorney’s decision was sound at

the time it was made, the decision cannot support a claim

of ineffective assistance of counsel. Winters v. Miller, 274

F.3d 1161, 1166 (7th Cir. 2001). When the claim of ineffective assistance is based on counsel’s failure to present a

motion to suppress, we have required that a defendant

prove the motion was meritorious. Owens v. United States,

387 F.3d 607, 610 (7th Cir. 2004); United States v. Stewart,

388 F.3d 1079, 1084 (7th Cir. 2004).

Cieslowski argues that Winslow’s decision was objectively

unreasonable, because such a motion would clearly have

succeeded. His reason for such confidence is because the

state prosecutor acquiesced in a similar motion filed in the

state court proceeding. We do not know, of course, why the

state prosecutor chose to concede a Miranda violation, but
10 No. 03-2890

that concession is certainly not binding on the federal court.

In fact, it seems unlikely to us that the court would have

granted any such motions. Winslow, whose testimony the

district court found more credible than that of Cieslowski,

explained that she did not file the motion to suppress the

evidence found on his laptop because Cieslowski had given

written consent to the search and she did not believe he

would prevail. She also testified that she decided against

filing a motion to suppress his inculpatory statements because it would have made little difference considering the

overwhelming evidence found on his laptop and damaging

statements made by Cieslowski’s ex-wife. Winslow was concerned that filing the proposed suppression motions would

have put Cieslowski at risk of an upward departure for

obstruction of justice as well as losing the credit he would

otherwise receive for accepting responsibility. On top of all

that, Winslow related that she did not recall Cieslowski’s

ever indicating to her a desire to go to trial. Winslow’s decisions fall squarely within the realm of strategic choice and

thus do not support a claim of ineffective assistance of

counsel.

The final basis for Cieslowki’s ineffective assistance claim

is that Winslow failed to advise the district court about a

sentencing agreement reached in the state court proceeding.

Under this alleged agreement, Cieslowski was to serve a

concurrent sentence for the state charges. Although he now

asserts that this agreement induced his plea in federal

court, he explicitly responded “no” at his Rule 11 colloquy

when asked by the court whether any promises had been

made outside of the plea agreement. Nor is there any dispute that he did in fact receive this concurrent sentence. We

cannot see how the gap in the district court’s knowledge

prejudiced him in any way.

An even more fundamental flaw in Cieslowski’s argument

is the lack of evidence that this was a promise made by the

federal prosecutors in exchange for his plea in the federal
No. 03-2890 11

case. The written plea agreement contains an integration

clause and explicitly disclaims the effectiveness of any prior

oral representation. Plea agreements are governed under

the principles of contract law, see United States v. Ingram,

979 F.2d 1179, 1184 (7th Cir. 1992), and oral representations

cannot alter the terms of a written agreement. Although

there may be circumstances that merit an inquiry into

whether oral promises may have induced a plea, thereby

rendering it involuntary, those circumstances do not exist

here. See, e.g., United States v. Graves, 374 F.3d 80 (2d Cir.

2004).

Cieslowski has presented no evidence that the federal

prosecutors ever made this contingent concurrent sentencing agreement part of his federal plea agreement. Winslow

testified that no one from the U.S. Attorney’s office ever

made any promises regarding the state court proceedings.

In fact, the federal prosecutor rejected her suggestions for

coordinating the two cases. The affidavit submitted by

Cieslowski’s counsel in the state case says nothing about

making the resolution of the federal case contingent on the

state case. As the alleged concurrent sentencing agreement

was not part of the federal plea agreement, Rule 11 does not

require that it had to be revealed to the district court.

Cieslowski has not shown that his plea was rendered involuntarily through ineffective assistance of counsel. Therefore,

we find no error in the denial of his motion to withdraw the

plea on this ground.

III

Cieslowski also argues that we should vacate his guilty

plea and sentence for a variety of other reasons: mutual mistake; breach of the agreement by the government; unauthorized use of the district court of its power to depart upward;

and an unauthorized additional condition of supervised

release. To the extent that these arguments, if successful,
12 No. 03-2890

would result in setting aside the plea agreement as a whole,

we entertain them despite the fact that the agreement itself

contains a waiver of appeal rights. Otherwise, we reject

them for the more straightforward reason that Cieslowski

has waived the right to urge them.

In order to put these arguments in context, we review

briefly two recent decisions that have addressed efforts to

set aside guilty pleas on the ground of mutual mistake. In

United States v. Bownes, 405 F.3d 634 (7th Cir. 2005),

defendant Bownes (like Cieslowski) had signed a plea agreement that included a waiver of appeal rights. Bownes argued

that he should be entitled to set aside his plea agreement,

including this waiver, on grounds of mutual mistake, because

he had not realized at the time he entered into the agreement that Booker was about to change the landscape of

federal sentencing practice. We held, relying on basic

principles of contract law, that this is not the kind of mistake that entitles parties to set aside a plea agreement. Id.

at 637-38. Although, as we pointed out both in Bownes and

in United States v. Cook, 406 F.3d 485 (7th Cir. 2005), plea

agreements may be attacked on some grounds that are not

available for ordinary contracts, such as ineffective assistance of counsel, 406 F.3d at 487, the analysis of ordinary

mutual mistake follows contract law. Bownes held that a

later change in law that is favorable to the defendant— even

one as major as Booker—is not enough to relieve a defendant of his bargain. Allocating risk about future developments is, after all, what contracts are all about. As we

explain below, there is no reason why a party like

Cieslowski cannot similarly allocate the risks relating to his

own mistakes about the background against which the

contract was made.

The mutual mistake to which Cieslowski points is, not

surprisingly, the erroneous assumption by both Winslow

and the Assistant U.S. Attorney that the pre-Amendment

615 version of the Guidelines was still in force. We noted in
No. 03-2890 13

Barnes that, “[a]t least in theory, ambiguity in an essential

term or a mutual mistake about the meaning of such a term

can invalidate” the plea agreement. 83 F.3d at 938. Under

the principles of contract law, the 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.” RESTATEMENT (SECOND) OF CONTRACTS

§ 152(1). We find no mutual mistake here, as the error did

not go to a basic assumption of the agreement or affect the

agreed exchange of performances. In exchange for pleading

guilty to § 2251(a), Cieslowski received a sentence of 210

months and the assurance that he would not be prosecuted

for the other nine counts in the indictment. There is no

indication on the face of the agreement (nor does Cieslowski

argue) that the parties intended the specified sentence to be

contingent on a particular method of calculating the

sentence. They agreed simply that a sentence of 210 months

would be imposed. By agreeing to a specified sentence,

Cieslowski insulated himself from the possibility of receiving a higher sentence, as the government bargained away its

right to move for an upward departure. Had an error in

calculation resulted in too low a sentence, the government

would similarly have been bound.

There is no dispute that the agreement provided that the

government could not request an upward departure from

the agreed sentence. Cieslowski argues nonetheless that the

government breached the agreement when it advised the

court after the Guideline error was discovered that it could

lawfully impose the 210-month sentence under the

amended Guidelines if it upwardly departed from the 168-

month level to reach the agreed 210-month point. As far as

the court’s authority to depart goes, this is correct, although

there was no real upward departure here as we explain

below. The key point is that the government did not breach

the agreement, as it requested only that the court impose

the sentence to which Cieslowski had agreed. Nor did the
14 No. 03-2890

court err when it imposed the exact term of imprisonment

it was bound to accept under the terms of the agreement

and under Rule 11(c)(1)(C), notwithstanding its erroneous

belief that it was in effect making an upward departure.

The reason why this was not a true upward departure goes

back to the nature of plea agreements under Rule 11(c)(1)(C).

In return for this type of guilty plea, the government may

agree to dismiss other charges, make sentencing recommendations, and “agree that a specific sentence or sentencing

range is the appropriate disposition of the case, or that a

particular provision of the Sentencing Guidelines, or policy

statement, or sentencing factor does or does not apply.”

FED. R. CRIM. P. 11(c)(1)(C). The rule further provides that

“such a recommendation or request binds the court once the

court accepts the plea agreement.” Id. If the district court

does not accept the sentencing agreement in its entirety,

the defendant must be allowed to withdraw her guilty plea;

the court does not have the power to retain the plea and

discard the agreed-upon sentence.

We have held that Rule 11(c)(1)(C) “[p]lea agreements can

retain their authority to bind the government, the defendant

and the district court even when they provide for sentences

that depart from the prescriptions of the guidelines.” Barnes,

83 F.3d at 941. Other circuits have reached the same

conclusion. See, e.g., United States v. Graves, 374 F.3d 80

(2d Cir. 2004); United States v. Bernard, 373 F.3d 339 (3d

Cir. 2004); United States v. Heard, 359 F.3d 544 (D.C. Cir.

2004); United States v. Peveler, 359 F.3d 369 (6th Cir. 2004).

This is not to say that all sentences under a plea agreement

can be accepted by the court. The sentence must comply

with the maximum (and minimum, if there is one) provided

by the statute of conviction. See United States v. Gibson,

356 F.3d 761, 766 (7th Cir. 2004) (“[E]ven when a defendant, prosecutor, and court agree on a sentence, the court

cannot give the sentence effect if it is not authorized by

law.” (internal quotation marks omitted)).
No. 03-2890 15

Cieslowski’s sentence of 210 months easily satisfies that

standard. The maximum sentence for a conviction under 18

U.S.C. § 2251(a) is 20 years, 18 U.S.C. § 2251(d), or

30 months more than Cieslowski received. Moreover, if there

was any doubt whether a court may impose a sentence

outside of the Sentencing Guideline range, that doubt has

been erased by the Supreme Court’s recent decision in

United States v. Booker, 125 S. Ct. 738, 764-65 (2005)

(Breyer, J.), which rendered the Sentencing Guidelines

advisory only. After the Guidelines took effect and prior to

Booker, some courts acknowledged a tension between

18 U.S.C. § 3553(b)(1) and Rule 11(c)(1)(C) because the

latter contemplates a sentence outside of the Guideline

range, but they resolved the apparent conflict in favor of

Rule 11(c)(1)(C). See 28 U.S.C. § 2072(b) (provision for

supersession of statutes by later rules); Bernard, 373 F.3d

at 344; United States v. Goodall, 236 F.3d 700, 705-06 (D.C.

Cir. 2001). Booker actually strengthens the case for the

validity of sentences imposed under Rule 11(c)(1)(C) plea

agreements that deviate from the Guideline range.

Nothing in Booker undermines the validity of sentences

imposed under Rule 11(c)(1)(C) plea agreements. Booker

holds only that the sentencing court is no longer bound to

impose a sentence mandated by the sentencing guidelines;

it says nothing that would restrict the defendant’s ability to

agree with the prosecutor on a particular lawful sentence in

a plea agreement under Rule 11(c)(1)(C). In fact, Booker has

the effect of restoring what is now Rule 11(c)(1)(C) to the

status it originally occupied in 1979, when it was amended to

clarify the difference between subpart (B) agreements

(recommended sentences) and subpart (C) agreements (specific sentences). See Advisory Committee Notes to Rule 11,

1979 Amendments. This took place before the advent of the

Sentencing Reform Act of 1984, at a time when district judges

had complete discretion to sentence anywhere between zero

(or a statutory minimum) and the statutory maximum.
16 No. 03-2890

With the important qualification that the Guidelines now

exist to assist the district court in making that decision,

that is once again the context in which Rule 11(c)(1)(C) is

operating. Under Rule 11, “the court retains absolute discretion whether to accept a plea agreement,” and the agreed

sentence obviously plays a role in the court’s consideration.

See FED. R. CRIM. P. 11 (1999) Advisory Committee’s Note.

A sentence imposed under a Rule 11(c)(1)(C) plea arises

directly from the agreement itself, not from the Guidelines,

even though the court can and should consult the Guidelines

in deciding whether to accept the plea. Cf. Heard, 359 F.3d

at 548-49. As Booker is concerned with sentences arising

under the Guidelines, it is inapplicable in this situation.

Last, we reject Cieslowski’s claim that the district court

exceeded its power when it added a condition to his supervised release to the effect that he was not to have unsupervised contact with minor children. This argument sounds as

if Cieslowski is attempting to enforce part of the plea

agreement; if so, he is precluded from raising it by his

waiver of appeal rights. If he means that this is another reason to set the agreement aside in its entirety, we reject the

point. The plea agreement plainly contemplated that the

district court would have the power to impose this type of

condition, and Cieslowski acknowledged during the Rule 11

colloquy that the court had this power and that he could not

withdraw from the agreement if he disagreed with a

condition of supervised release. Nothing here would justify

relieving him of the consequences of the agreement as a

whole.

IV

Cieslowski would also like to raise a Sixth Amendment

challenge to various aspects of his sentence, but once again,

since we have concluded that he cannot escape the plea

agreement, he cannot do so. The plea agreement contained

a waiver of Cieslowski’s right to appeal “any sentence within
No. 03-2890 17

the maximum provided in the statute of conviction.” We

strictly enforce such waivers. See Barnes, 83 F.3d at 941;

United States v. Feichtinger, 105 F.3d 1188, 1190 (7th Cir.

1997). Cieslowski voluntarily entered into the plea agreement, and he is therefore bound by all its terms, including

the waiver of his right to appeal the sentence.

For these reasons, Cieslowski’s conviction and sentence

are AFFIRMED.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—6-1-05