### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 19-3378

U NITED S TATES OF A MERICA , Plaintiff -Appell ee ,

v.

D AMEION W YATT , Defendant -Appell ant

.

____________________ Appeal from the United States District Court for the Eastern District of Wisconsin

. No. 2: 18

- cr

- 00085

- JPS -1 — J.P. Stadtmueller
, Judge

.

____________________

A RGUED N OVEMBER 17, 2020

— D ECIDED D ECEMBER 14, 2020

____________________

Before E ASTERBROOK , H AMILTON , and S T

. E VE , Circuit Judges

. H AMILTON , 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 told2 No. 19-3378

the court about his cooperation. Wyatt did not object at the time, and he received the jointly recommen ded sentence. Hehas 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 t hat 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 theguideline range, Wyatt has not shown a reasonable probability that the breac h had any effect on his sentence. This was not a plain error calling for any remedy.

I. Factual and Procedural BackgroundWyatt 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 s ubstantial, it might “in its discretion” seek a downward departure.No. 19-3378 3

Before sentencing, it was not the government but Wyatt’scounsel 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 contestedsome 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’slawyer stressed that he had turned away from crime, immersed himself in religion, and started a real estate and rental business catering to underserved co mmunities. 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 la wyer 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 longcriminal 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, thecourt did not mention cooperation. The court sentenced Wyatt to ten ye ars in prison and three years of supervised release.4 No. 19-3378

II. Analysis On appeal, Wyatt argues that the prosecutor’s silenceabout 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 lowerterm, 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 Ci r. 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); U nited 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 alsothat 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 a bout 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 agreementof the prosecutor, so that it can be said to be part of the induc ement or consideration, such promise must be fulfilled.” Santobello , 404 U.S. at 262. Prosecutors, who have the benefitof 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 recommendationso 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 ben efits of Wyatt’s assistance, and we can see no excuse in this record. The government does try, however, to characterize thisbreach as “technical” because Wyatt submitted on his own behalf a sealed document outlining the extent of his cooperation. We rejec t this effort to minimize the breach. The government’sargument 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 comefrom 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 information6 No. 19-3378

is so important. See, e.g., U.S.S.G. §§ 3E1.1 & 5K1.1 (third levelof credit for acceptance of responsibility and downward departure for substantial assistance available only upon g overnment 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 torecommend 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 thirdlevel unavailable, and judge made clear his intention to impose s tatutory 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 ten

year sentence was substantially below the applicable g uideline range. The court would not have accepted the joint ten

year recommendation without taking Wyatt’s cooperationNo. 19-3378 7

into account. The information about that cooperation was presented to the court, albeit under seal. We attribute no significance to the j udge’s silence about it in the sentencing hearing. Cooperation is often not discussed in open court because ofthe risk of retaliation by other criminals. The remote possibility of a sentence even lighter than the parties’ agreed recommendation cannot sati sfy 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 torequest”). 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

- yearrecommendation. 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. Thegovernment would again recommend ten years; the agreement would bar Wyatt from arguing for anything less; andthe government’s new statement of cooperation would remain unaccomp anied by a substantial

- assistance motion. Wecan 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 term8 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 thi s case do not call for that remedy under the plain -error standard. The judgment of the district court is AFFIRMED

.