In the

United States Court of Appeals

For the Seventh Circuit

No. 06-2547

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

PARRISH D. COLE,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Indiana, Hammond Division.

No. 05 CR 65—James T. Moody, Judge.

ARGUED JUNE 3, 2008—DECIDED JUNE 30, 2009

Before KANNE, SYKES, and TINDER, Circuit Judges.

SYKES, Circuit Judge. Parrish Cole entered into a

written plea agreement with the government in which

he acknowledged distributing less than 400 grams of

heroin and less than a kilogram of marijuana. The

district court accepted the plea agreement but found,

based on information in the presentence report, that

Cole should be held responsible for a greater quantity of

drugs than the amounts he had admitted in the agreement. The court increased Cole’s guidelines range accord-
2 No. 06-2547

ingly and sentenced Cole to 97 months in prison, which

was nearly double the sentence Cole expected if the

court had followed the recommendations in the plea

agreement. Cole challenges his sentence; although in his

plea agreement he waived his right to appeal, he argues

that the appeal waiver is unenforceable because the

district court’s independent calculation of the drug quantities effectively nullified the agreement.

We disagree. The enforceability of Cole’s appeal waiver

hinges on whether the drug quantities in Cole’s plea

agreement were binding on the district court for sentencing purposes. Rule 11(c)(1)(C) of the Federal Rules

of Criminal Procedure provides that if the district court

accepts a plea containing an agreement between the

government and the defendant about a specific sentence,

sentencing range, or the applicability of a specific guidelines provision, policy statement, or sentencing factor,

the court is bound by the parties’ agreement for purposes of sentencing. Cole’s drug-quantity admissions in

the plea agreement do not fall into any of these

categories but are instead factual stipulations that fall

outside Rule 11(c)(1)(C)’s scope and thus do not bind

the district court. See U.S.S.G. § 6B1.4(d). Accordingly,

when the district court independently quantified the

amount of drugs attributable to Cole based on information in the presentence report, it did not nullify the plea

agreement. The appeal waiver in Cole’s agreement is

enforceable, and we dismiss his appeal.
No. 06-2547 3

I. Background

Parrish Cole pleaded guilty to one count of distributing

heroin in violation of 21 U.S.C. § 841(a)(1). As part of

his written plea agreement with the government, Cole

agreed that he had distributed between 100 and 400 grams

of heroin and between 250 and 1,000 grams of marijuana.

Cole also agreed to forfeit (among other things) $84,150

in cash, which he acknowledged he earned through his

drug trade. In addition to dropping eight other narcoticsrelated charges, the government agreed to recommend

a reduction in Cole’s offense level for acceptance of responsibility and a sentence equal to the low end of his applicable guidelines range. Cole’s plea agreement also

included a waiver of his right to appeal his sentence.

The district judge waited until after he had received

and reviewed the presentence report before accepting the

plea agreement’s recommendations. That report recommended converting the cash Cole agreed to forfeit into a

drug quantity for sentencing purposes, see United States v.

Rivera, 6 F.3d 431, 446-47 (7th Cir. 1993), something that

neither the government nor Cole had considered during

plea negotiations. At sentencing the government asked the

district court to adhere to the drug quantities Cole had

admitted in his plea agreement in determining Cole’s

sentence, but the district court declined to do so; the judge

concluded that U.S.S.G. § 6B1.4(d) permitted him to reject

factual stipulations in the plea agreement. Adopting the

information in the presentence report, the court treated

the cash as the equivalent of 832 grams of heroin, which

raised Cole’s offense level by six levels and nearly doubled
4 No. 06-2547

his applicable guidelines range. The district court sentenced Cole to 97 months’ imprisonment, at the bottom

of the advisory guidelines range. Cole appealed his

sentence, arguing that the district court erred by rejecting

the drug quantities in his plea agreement.

II. Discussion

The government asks us to dismiss this appeal because

Cole waived his right to appeal his sentence in his plea

agreement. As a general rule, a defendant may waive the

right to appeal his conviction and sentence, FED. R. CRIM.

P. 11(b)(1)(N), and appeal waivers are generally valid if

they are made knowingly and voluntarily. See United

States v. Franklin, 547 F.3d 726, 731-32 (7th Cir. 2008).

However, a knowing and voluntary waiver might not be

enforceable if the plea was not taken in compliance

with Rule 11 of the Federal Rules of Criminal Procedure.

United States v. Wenger, 58 F.3d 280, 282 (7th Cir. 1995) (“If

the agreement is voluntary, and taken in compliance

with Rule 11, then the waiver of appeal must be honored. If

the agreement is involuntary or otherwise unenforceable,

then the defendant is entitled to appeal.”); see also United

States v. Lockwood, 416 F.3d 604, 608 (7th Cir. 2005) (observing that waivers are unenforceable if the defendant has

been sentenced based on constitutionally impermissible

criteria, the sentence exceeds the statutory maximum, or

the defendant received ineffective assistance of counsel

during plea negotiations and sentencing proceedings).

Cole contends that the district court’s sentencing decision did not comport with the requirements of Rule 11
No. 06-2547 5

and therefore the plea agreement was effectively nullified

and the appeal waiver is unenforceable. See, e.g., United

States v. Hare, 269 F.3d 859, 860 (7th Cir. 2001) (“A waiver

of appeal is valid, and must be enforced, unless the agreement in which it is contained is annulled . . . .”). The merits

of Cole’s Rule 11 claim are intertwined with the

enforceability of his appeal waiver; if Rule 11 did not

require the district court to use the drug-quantity

amounts in Cole’s plea agreement for sentencing purposes, then the plea is valid and Cole’s appeal waiver

is enforceable. Thus, “the plea and the waiver stand or

fall together.” Latham v. United States, 527 F.3d 651, 653

(7th Cir. 2008).

Plea agreements are governed by Rule 11(c), which

makes some types of agreements between the government and a defendant binding upon the district court

and others not. For example, if the parties “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 district court is bound by the parties’

agreement if the court chooses to accept the plea, id.

11(c)(4). See United States v. O’Neill, 437 F.3d 654, 655-57

(7th Cir. 2006) (describing the operation of a “lock-in”

plea agreement under Rule 11(c)(1)(C)). Cole contends

that once the district court accepted his plea, Rule

11(c)(1)(C) required the district court to use the drugquantity amounts in the plea agreement in its sentencing

analysis; the court could not accept the plea, Cole argues,

without also accepting the factual stipulations in the
6 No. 06-2547

Cole thinks that the timing of the district court’s decision 1

sheds light on whether he entered into a Rule 11(c)(1)(C)

agreement. For support, he points out that a district court

confronted with a Rule 11(c)(1)(C) agreement may only accept

(continued...)

agreement. Cf. United States v. Martin, 287 F.3d 609, 622

(7th Cir. 2002) (“A plea agreement is a unified document,

and even if the district court wanted to it could not

accept part and reject part.”).

Not all particularized provisions in a plea agreement

operate to make a plea agreement binding on the district

court. See FED. R. CRIM. P. 11(c)(1)(B) (providing that the

district court is not bound by the parties’ agreement

that the government will “recommend, or agree not to

oppose the defendant’s request, that a particular sentence or sentencing range is appropriate or that a particular provision of the Sentencing Guidelines, or policy

statement, or sentencing factor does not apply”). Cole’s

plea agreement contained many provisions explicitly

preserving the nonbinding character of the agreement.

For example, the agreement specifically stated that the

district court “will determine the applicable guidelines

range” and “will determine all matters, whether factual or

legal, relevant to the application” of the guidelines, and

that “the specific sentence to be imposed . . . will be

determined by the judge.” Cole claims nonetheless

that other parts of the agreement—specifically his drugquantity admissions—were binding and that these

brought his agreement within the terms of

Rule 11(c)(1)(C).1
No. 06-2547 7

(...continued)

it, reject it, or defer a decision until the court reviews the

presentence report. FED. R. CRIM. P. 11(c)(3)(A). Because the

court deferred a decision on accepting the recommendations

in the plea agreement until it reviewed the presentence report,

Cole claims he entered into a binding Rule 11(c)(1)(C) agreement. But when or whether the district court accepts a plea

agreement has no bearing on whether a plea agreement is

binding or nonbinding under Rule 11(c)(1); the relevant

inquiry focuses on what the government and the defendant

agreed upon. See United States v. Bennett, 990 F.2d 998, 1004

(7th Cir. 1993).

Rule 11(c)(1)(C) only applies to agreements regarding

sentences, sentencing ranges, or sentencing factors; it

does not apply to factual stipulations. Typically, Rule

11(c)(1)(C) agreements explicitly contain an agreed-upon

sentence, e.g., United States v. Weathington, 507 F.3d 1068,

1070 (7th Cir. 2007), or an agreed-upon sentencing range,

e.g., United States v. Blinn, 490 F.3d 586, 587 (7th Cir. 2007).

Rule 11(c)(1)(C) agreements may also explain how an

agreed-upon sentence will be affected by a court’s resolution of disputed issues. See, e.g., United States v. Linder, 530

F.3d 556, 559 (7th Cir. 2008) (parties agreed defendant

would be sentenced to 50% of the low end of the applicable guidelines range).

Cole’s plea agreement contains none of these indicia.

The paragraph in Cole’s plea agreement addressing the

amount of drugs he distributed does not contain an

agreement on “a specific sentence or sentencing range” or

an agreement regarding the applicability of any “particular
8 No. 06-2547

provision of the guidelines, a policy statement, or a sentencing factor.” FED. R. CRIM. P. 11(c)(1)(C). To the contrary, as we have noted, other portions of the agreement specifically state that the district court “will determine the applicable guideline range” and “will determine

all matters, whether factual or legal, relevant to the application” of the guidelines. The agreement also provides

that “the specific sentence to be imposed . . . will be

determined by the judge.” Nothing in the paragraph

containing Cole’s admissions as to drug quantities

altered these general provisions.

Instead, Cole’s admissions regarding drug quantities

are the equivalent of a stipulation of facts that falls

outside Rule 11’s scope. The district court is not bound by

the parties’ stipulations, a point confirmed by the guidelines. See U.S.S.G. § 6B1.4 (“A plea agreement may be

accompanied by a written stipulation of facts relevant to

sentencing. . . . The court is not bound by the stipulation, but may with the aid of the presentence report,

determine the facts relevant to sentencing.”) The commentary accompanying § 6B1.4 emphasizes this point:

Section 6B1.4(d) makes clear that the court is not

obliged to accept the stipulation of the parties. Even

though stipulations are expected to be accurate and

complete, the court cannot rely exclusively upon

stipulations in ascertaining the factors relevant to

the determination of the sentence. Rather, in determining the factual basis for the sentence, the court

will consider the stipulation, together with the results

of the presentence investigation, and any other relevant

information.
No. 06-2547 9

(Emphasis added.) Simply mentioning a particular guideline provision (as Cole’s plea agreement does) is not

enough to convert a factual stipulation into a binding

Rule 11(c)(1)(C) agreement. If the parties meant to bind

the district court at sentencing, then the agreement

would have contained specific language to that effect. As

it was, the agreement explicitly left all aspects of the

guidelines calculation and the ultimate sentence up to

the court. As such, the court was free to accept the plea

yet rely on the presentence report to reach its own drugquantity findings notwithstanding the parties’ stipulation about the drug quantities. During the Rule 11 plea

colloquy, Cole himself acknowledged that the drugquantity amounts were not binding; when the judge

advised him that the court was free to disregard the

recommendations in the plea agreement and that Cole

could face up to 20 years’ imprisonment, he said he

understood.

Cole’s argument is similar to the one made by the

defendant in United States v. Bennett, 990 F.2d 998 (7th Cir.

1993). In Bennett the defendant had stipulated that he

was not a career offender, but he had concealed a

prior violent felony that the probation officer uncovered

while preparing the presentence report. 990 F.2d at 1000-

01. Although the government had asked the district

court to abide by the parties’ stipulation, we concluded that the parties’ agreement as to the defendant’s

career-offender status did not bind the court because it

did not fall within the category of agreements that

Rule 11 makes binding in sentencing proceedings. Id. at

1002-04. True, the types of agreements that may bind a
10 No. 06-2547

district court under Rule 11 have been expanded since

Bennett, compare id. at 1001 (quoting a prior version of

Rule 11(c)(1)(C) that provided that the parties might

agree that “a specific sentence is the appropriate disposition of the case”), with FED. R. CRIM. P. 11(c)(1)(C) (providing that a district court may be bound by the parties’

agreement regarding specific sentences, sentencing

ranges, or the application of other guidelines provisions,

policy statements, or sentencing factors), but its reasoning is still sound. Rule 11(c)(1)(C) does not apply to

stipulated facts, and so the drug-quantity amounts in

Cole’s agreement did not constrain the district court’s

sentencing decision. Cole acknowledged as much in the

agreement itself and at his plea hearing when he said

he understood that the court retained complete freedom

to calculate the applicable sentencing guidelines range

and determine the appropriate sentence. Accordingly,

the district court did not nullify Cole’s plea by rejecting

the drug-quantity stipulations in the plea agreement, and

the appeal waiver in Cole’s plea agreement is enforceable.

The appeal is DISMISSED.

6-30-09