In the

United States Court of Appeals 

For the Seventh Circuit ____________________ 

No. 19-3378 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

v.

DAMEION WYATT, 

Defendant-Appellant. 

____________________ 

Appeal from the United States District Court for the

Eastern District of Wisconsin. 

No. 2:18-cr-00085-JPS-1 — J.P. Stadtmueller, Judge. 

____________________ 

ARGUED NOVEMBER 17, 2020 — DECIDED DECEMBER 14, 2020 

____________________ 

Before EASTERBROOK, HAMILTON, and ST. EVE, Circuit 

Judges. 

HAMILTON, Circuit Judge. Appellant Dameion Wyatt 

pleaded guilty to conspiring to traffic a minor. In exchange, 

the government promised to join him in recommending a below-guideline sentence of ten years in prison and to advise 

the court about his post-plea cooperation. The government 

upheld only part of its bargain. It did recommend a ten-year 

sentence. Yet it was Wyatt’s lawyer, not prosecutors, who told 
2 No. 19-3378 

the court about his cooperation. Wyatt did not object at the 

time, and he received the jointly recommended sentence. He 

has appealed, nevertheless, arguing that the government’s silence about his cooperation breached the plea agreement, constitutes plain error, and warrants resentencing by a different 

judge. We affirm Wyatt’s sentence. We agree with Wyatt that 

the government’s silence breached the plea agreement, but 

under these circumstances, in which the judge accepted the 

parties’ joint recommendation of a sentence well below the 

guideline range, Wyatt has not shown a reasonable probability that the breach had any effect on his sentence. This was not 

a plain error calling for any remedy. 

I. Factual and Procedural Background

Wyatt sexually trafficked at least four women and conspired to traffic one minor in Wisconsin and nearby states. A 

grand jury indicted him on ten counts of trafficking. Wyatt 

and the government agreed that Wyatt would plead guilty to 

just one count, for conspiring to traffic a minor in violation of 

18 U.S.C. § 1594(c). The written plea agreement provided that 

the parties would jointly recommend a prison sentence of 120 

months (ten years), which was less than half the low end of 

the Sentencing Guideline range later calculated by the court.

In Paragraph 33 of the agreement, Wyatt promised to 

“fully and completely cooperate” with the government in related investigations. The government, in turn, agreed “to advise the sentencing judge of the nature and extent of the defendant’s cooperation.” The government left open the possibility that, if Wyatt’s cooperation were substantial, it might 

“in its discretion” seek a downward departure.
No. 19-3378 3

Before sentencing, it was not the government but Wyatt’s 

counsel who filed a sealed document outlining Wyatt’s cooperation since entering his plea. (Because the document remains sealed, we do not canvass the details here.) The document did not discuss any obligation that the government endorse it, and the government filed no response. 

At the sentencing hearing, the court adopted the guideline 

calculations in the Presentence Investigation Report, yielding 

an imprisonment range of 262 to 327 months. Wyatt contested 

some elements of the guideline calculation, but the court declined to resolve them, characterizing the disputes as “academic” because even the lower ranges advocated by Wyatt 

lay well above the jointly recommended ten years. 

Then, in support of the ten-year recommendation, Wyatt’s 

lawyer stressed that he had turned away from crime, immersed himself in religion, and started a real estate and rental 

business catering to underserved communities. Wyatt then 

spoke on his own behalf. Despite the plea agreement, he 

asked for a three-year sentence. Not surprisingly, this led the 

government to ask whether Wyatt actually wished to stick 

with his plea agreement. After a short recess, Wyatt’s lawyer 

reiterated that he wished to stand by the plea and the joint 

recommendation of ten years. The prosecutor concurred, expressly weighing Wyatt’s moral turnaround against his long 

criminal history, the violence of his crimes, and his victimization of the trafficked women. The prosecutor never mentioned Wyatt’s cooperation. 

The court accepted the joint recommendation as “eminently fair” and “reasonable.” In explaining its decision, the 

court did not mention cooperation. The court sentenced Wyatt to ten years in prison and three years of supervised release. 
4 No. 19-3378 

II. Analysis 

On appeal, Wyatt argues that the prosecutor’s silence 

about his cooperation breached the plea agreement and requires resentencing before a new judge. Although the jointly 

recommended sentence was far below the guideline range, 

although the agreement barred him from seeking a lower 

term, and although the government did not seek a substantial-assistance departure, Wyatt suggests that if the government had submitted or ratified the details of his sealed filing, 

the judge might have chosen on his own initiative to go below 

the recommended sentence. 

In the absence of factual disputes, we review de novo

whether a plea agreement has been breached. See United 

States v. Navarro, 817 F.3d 494, 499 (7th Cir. 2016). A government’s breach of a promise about its sentencing recommendation is serious. The minimum remedy is ordinarily to vacate 

the sentence and to order resentencing before a different 

judge. See Santobello v. New York, 404 U.S. 257, 263 (1971); 

United States v. Diaz-Jimenez, 622 F.3d 692, 696–97 (7th Cir. 

2010). In this case, however, Wyatt did not alert the district 

court to any problem. The parties and we therefore agree that 

his claim may be reviewed only for plain error. See Navarro, 

817 F.3d at 499. To prevail, Wyatt must show not only that 

there was (1) a breach that (2) was clear and obvious , but also 

that it (3) affected his substantial rights and (4) seriously disturbed the fairness, integrity, and reputation of the judicial 

proceedings. Puckett v. United States, 556 U.S. 129, 135 (2009) 

(applying four-step plain-error review to government’s 

breach of promise to recommend three-level guideline reduction for acceptance of responsibility). 
No. 19-3378 5

We agree with Wyatt that the prosecutor’s silence about 

his cooperation was an error, and an obvious one, satisfying 

the first two steps of the plain-error test. When a guilty plea 

depends “in any significant degree on a promise or agreement 

of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” 

Santobello, 404 U.S. at 262. Prosecutors, who have the benefit 

of drafting plea agreements to their own satisfaction, must adhere to their promises. E.g., Diaz-Jimenez, 622 F.3d at 696–97 

(finding breach where prosecutor broke explicit promise for 

sentence recommendation). The government here promised 

to tell the court about Wyatt’s cooperation. If the district court 

had been more skeptical about a sentencing recommendation 

so far below the guideline range, information about cooperation could have proved critical in persuading the judge that 

the recommendation was reasonable. The government offers 

no excuse for its failure to provide that information when the 

time came, especially after reaping the benefits of Wyatt’s assistance, and we can see no excuse in this record. 

The government does try, however, to characterize this 

breach as “technical” because Wyatt submitted on his own behalf a sealed document outlining the extent of his cooperation. 

We reject this effort to minimize the breach. The government’s 

argument is not consistent with the adversarial roles of government and defense. Every judge and lawyer in the federal 

criminal justice system knows that arguments and evidence 

in mitigation carry much greater weight when they come 

from the government instead of the defense. This truism carries extra force when it comes to assessments of cooperation, 

where the government is better informed and less likely than 

the defense to exaggerate the value. That’s why a promise 

from the government to present such mitigating information 
6 No. 19-3378 

is so important. See, e.g., U.S.S.G. §§ 3E1.1 & 5K1.1 (third level 

of credit for acceptance of responsibility and downward departure for substantial assistance available only upon government motion). That’s also why the presumptive remedy is reversal and resentencing before a new judge. 

Even so, a plain error warrants reversal on a forfeited 

claim only if it affects a defendant’s substantial rights, the 

third step of the plain-error test. To make that showing, Wyatt 

would need to establish a reasonable likelihood that he would 

have received a lower sentence if prosecutors had spoken up 

about his cooperation. See Puckett, 556 U.S. at 134–35, 141–42 

(on plain-error review, government’s breach of promise to 

recommend credit for acceptance of responsibility did not require reversal; defendant’s intervening commission of new 

crime made credit unavailable as practical matter); United 

States v. Anderson, 604 F.3d 997, 1002–03 (7th Cir. 2010) (on 

plain-error review, government’s breach of promise to move 

for third level of credit for acceptance of responsibility did not 

require reversal; defendant had gone to trial, making third 

level unavailable, and judge made clear his intention to impose statutory maximum sentence regardless of other details). 

Wyatt contends that he might have received a lighter sentence. He points out that the court accepted the recommended 

ten-year sentence even without expressly considering his cooperation. It stands to reason, he says, that if the court had not 

been deprived of this mitigating information, it might have 

found an even shorter sentence reasonable. 

We view that as a highly improbable scenario. The tenyear sentence was substantially below the applicable guideline range. The court would not have accepted the joint tenyear recommendation without taking Wyatt’s cooperation 
No. 19-3378 7

into account. The information about that cooperation was presented to the court, albeit under seal. We attribute no significance to the judge’s silence about it in the sentencing hearing. 

Cooperation is often not discussed in open court because of 

the risk of retaliation by other criminals. The remote possibility of a sentence even lighter than the parties’ agreed recommendation cannot satisfy the “remarkably demanding” test 

for plain error in this situation. Anderson, 604 F.3d at 1002–03. 

The court imposed the precise sentence Wyatt asked for. 

See Puckett, 556 U.S. at 141–42 (noting prejudice from breach 

is unlikely if defendant obtains benefit contemplated by “the 

deal,” such as “the sentence that the prosecutors promised to 

request”). The district court’s characterization of any guideline disputes as “academic” in light of that joint recommendation signaled clearly that additional mitigating information 

would not have affected the ultimate decision. Add to that the 

government’s decision not to seek a substantial-assistance departure and the parties’ continued adherence to a ten-year 

recommendation. We cannot conclude that Wyatt’s substantial rights were impaired. 

Finally, Wyatt’s request for relief also fails to satisfy the 

fourth and discretionary step of the plain-error test: the likely 

effect on the fairness, integrity, and public reputation of the 

judicial proceedings. Puckett, 556 U.S. at 135, 142. Consider 

what would happen on remand if we agreed with Wyatt. The 

government would again recommend ten years; the agreement would bar Wyatt from arguing for anything less; and 

the government’s new statement of cooperation would remain unaccompanied by a substantial-assistance motion. We 

can only imagine the puzzled looks among the judge and lawyers. All Wyatt could do is hope for a sua sponte decision to 

sentence him to less than the jointly recommended term 
8 No. 19-3378 

already so far beneath the guideline range. Fairness, integrity, 

and the public reputation of the courts do not require that exercise. A remand for resentencing before a different judge is 

the ordinary remedy for a breach like this one, if an objection 

is raised, but the circumstances of this case do not call for that 

remedy under the plain-error standard. 

The judgment of the district court is AFFIRMED.