In the 

United States Court of Appeals 

For the Seventh Circuit ____________________ 

No. 20-1198 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

v.

LARRY COLLINS, also known as SCOOTER, 

Defendant-Appellant. 

____________________ 

Appeal from the United States District Court for the 

Northern District of Illinois, Eastern Division. 

No. 1:15-CR-00379-3 — Gary Feinerman, Judge. 

____________________ 

ARGUED DECEMBER 15, 2020 — DECIDED FEBRUARY 3, 2021

____________________ 

Before KANNE, HAMILTON, and BRENNAN, Circuit Judges. 

HAMILTON, Circuit Judge. Larry Collins was charged in 

2014 with participating in a heroin distribution ring. He 

pleaded guilty to two charges and was sentenced to 180 

months in prison, the statutory mandatory minimum for 

those offenses. In this direct appeal, Collins seeks to withdraw 

his guilty plea because, he says, at sentencing the government 

breached the plea agreement by failing to tell the court that he 
2 No. 20-1198 

cooperated with its investigation. Collins did not raise this argument in the district court, so we review it under the demanding “plain error” standard. We affirm. Even if there 

might have been a breach of the plea agreement, which we 

doubt, it was not plain. And even if there had been a plain 

error, the unusual circumstances of this case show that Collins 

did not suffer any prejudice from it. His sentence was the lowest the law would permit, and the plain-error review does not 

entitle Collins himself to choose to withdraw his guilty pleas. 

I. Factual and Procedural Background 

Collins’s boss supplied heroin out of “stash houses” where 

workers mixed, stored, and packaged drugs. They kept firearms at the houses and sold heroin to street distributors. After 

Collins was charged with trafficking heroin, his cooperation 

with the government became relevant to sentencing. His first 

attempt, and the focus of this appeal, was his meeting with 

the prosecutor to discuss his role in the drug distribution ring. 

Collins and his lawyer hoped for “safety-valve” relief, which 

allows some cooperating defendants to be sentenced below 

an otherwise-applicable statutory minimum by telling the 

government what they know about their own 

crimes. See 18 U.S.C. § 3553(f). At the meeting, however, both 

the defense and the prosecution realized that § 3553(f)(2) 

barred Collins from safety-valve relief because his offenses involved firearms. 

Collins later negotiated a plea deal with the government. He pleaded guilty to possessing heroin with intent to 

distribute, 21 U.S.C. §§ 841(a)(1), 846, and possessing a firearm in furtherance of a drug trafficking offense, 18 U.S.C. 

§ 924(c)(1)(A)(i). The first charge carried a ten-year mandatory 

minimum sentence and the second a five-year mandatory 
No. 20-1198 3

minimum consecutive to the first, for a total minimum of fifteen years in prison. 

The second episodes relevant to cooperation stem from the 

written plea agreement. Collins agreed to “fully and truthfully cooperate in any matter.” In exchange, the government 

held out the only remaining possibility for avoiding the mandatory minimum fifteen years. If the government determined 

that Collins complied, it promised it would move for a downward departure from the statutory minimum under the terms 

of 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1. In addition, the 

government agreed to “make known to the sentencing judge 

the extent of [Collins’s] cooperation” in “providing complete 

and truthful information in any investigation and pre-trial 

preparation and complete and truthful testimony in any ... 

proceeding.” 

The judge accepted Collins’s guilty plea. At the plea hearing, the judge explained that the plea deal required Collins to 

cooperate with the government, and that, if he did, he could 

receive a downward departure in his sentence, below the statutory minimums. After discussing the agreement and ensuring that Collins understood his rights, as required by the detailed provisions of Federal Rule of Criminal Procedure 11(b), 

the judge ruled that his pleas were knowing and voluntary 

and found him guilty. 

Before sentencing, however, Collins chose not to follow 

through. He did not cooperate as he had promised and as the 

government wanted. Consistent with the plea agreement, the 

government had planned to call Collins to testify at his codefendants’ trial. Three weeks before that trial, however, Collins told the prosecutors that he would not meet with them. 

The government made a second request for Collins’s lawyer 
4 No. 20-1198 

to schedule a meeting with the government. Again, Collins refused to attend. The government then made a third request. 

Collins appeared for the meeting, but when the prosecutor 

asked Collins one question about guns, he refused to answer 

and left the meeting. 

About two weeks later, Collins moved to withdraw his 

guilty pleas. He said that he had learned about illegally obtained evidence. He also faulted his lawyer for telling him to 

participate in the safety-valve meeting even though Collins 

was not eligible for relief. The court denied his motion. 

Sentencing came next. The government did not move for 

a downward departure from the statutory minimum. It explained that Collins had refused its three requests to provide 

“complete and truthful testimony” as required by the plea 

agreement. Collins disputed the government’s position, saying that he had attended one meeting, but that was the meeting where he declined to answer the question and left. The 

district court concluded correctly that it was “solely in the 

government’s discretion” to decide whether Collins had been 

forthcoming enough to earn a downward departure. Given 

Collins’s lack of cooperation, the government’s refusal to 

move for one was amply justified. The court sentenced Collins 

to fifteen years in prison—the lowest sentence available. 

II. Analysis

On appeal, Collins argues that the government breached 

the plea agreement by not telling the judge that he had tried 

to cooperate during his original safety-valve proffer, which 

occurred before he entered into the plea agreement. Collins 

says that he relied on the government’s promise when he 
No. 20-1198 5

pleaded guilty. He maintains the breach entitles him to withdraw his plea and proceed to trial. 

Because the parties do not dispute the relevant facts, the 

question of breach is a legal one that we review de novo. See

United States v. Wyatt, 982 F.3d 1028, 1030 (7th Cir. 2020). A 

government breach of a plea agreement can be a very serious 

matter, particularly if it concerns the government’s sentencing 

recommendation or position. Id. Depending on the circumstances, a proven breach may be remedied by resentencing, 

ordinarily before a different judge, or by allowing the defendant to withdraw his plea. Santobello v. New York, 404 U.S. 257, 

262–63 (1971) (finding that government’s sentencing recommendation breached its plea agreement and remanding to 

trial court to decide whether remedy should be resentencing 

or plea withdrawal). 

In this case, however, we must approach the questions of 

breach and remedy through the lens of plain error. Collins did 

not raise in the district court his claim that the government 

had breached the plea agreement. E.g., Puckett v. United States, 

556 U.S. 129 (2009) (applying plain-error review to new claim 

on appeal of breach of plea agreement); see Fed. R. Crim. P. 

51(b) & 52(b). The Supreme Court explained in Puckett that 

proving plain error is “difficult, ‘as it should be.’” 556 U.S. at 

135. Collins must show (1) that there was a breach that (2) was 

clear and obvious, which (3) affected his substantial rights 

and (4) seriously disturbed the fairness, integrity, and reputation of the judicial proceedings. Id. (applying four-step plainerror review to government’s breach of promise to recommend guideline reduction). We follow all four of those steps. 

First and second, it is possible that the government 

breached its plea agreement here, but any possible breach was 
6 No. 20-1198 

not “clear” or “obvious.” The plea agreement required the 

government to “make known at the time of sentencing the extent of [Collins’s] cooperation.” At sentencing, the government truthfully told the court that, shortly before the co-defendants’ trial, it made three attempts to secure from Collins 

his “complete and truthful testimony” and that Collins refused to provide it. The prosecutor said nothing, however, 

about Collins’s proffer for safety-valve relief before he 

pleaded guilty. 

Even though the prosecutor was silent about this proffer, 

the district court was already aware of it: Collins discussed it 

with the court at least four times—during two earlier motion 

hearings, in his sentencing memorandum, and at the sentencing hearing. And at no time did the government dispute the 

fact of that proffer. 

In the language of at least the federal criminal justice system, there is a difference between admitting one’s own guilt 

and “cooperating.” The safety valve requires a defendant to 

“truthfully provide[] to the Government all information and 

evidence the defendant has concerning the offense or offenses 

that were part of the same course of conduct or of a common 

scheme or plan.” 18 U.S.C. § 3553(f)(5). But if the defendant 

has no information useful in prosecuting others, that fact does 

not justify denial of safety-valve relief. Id. “Cooperation,” on 

the other hand, is usually understood to require truthful information that provides substantial assistance in prosecuting 

others. See § 3553(e); U.S.S.G. § 5K1.1. And cooperation that 

satisfied § 3553(e) and § 5K1.1 was the only way Collins could 

avoid the mandatory minimum of fifteen years. 
No. 20-1198 7

What did the parties mean in requiring the government to 

disclose the defendant’s “cooperation” in this plea agreement? Only substantial assistance, or did the parties mean to 

include the original unsuccessful proffer under the safetyvalve? We believe the better interpretation is substantial assistance. After it became clear that Collins was not eligible for 

the statutory safety valve, substantial assistance would have 

been the only way to avoid the fifteen-year mandatory minimum sentence. And that interpretation is consistent with both 

sides’ conduct in the sentencing hearing. The government did 

not remind the judge about the safety-valve proffer, and the 

defense did not suggest that the silence was a breach of the 

plea agreement. 

On the other hand, we can also understand that it might 

have been important for Collins to have the government tell 

the judge anything positive about his efforts to accept responsibility by providing truthful information about his own conduct. As we noted in Wyatt: 

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 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 
8 No. 20-1198 

assistance available only upon government motion). That’s also why the presumptive remedy 

is reversal and resentencing before a new judge. 

Wyatt, 982 F.3d at 1030–31. 

Still, if there was a breach in the government’s failure to 

remind the judge about the earlier safety-valve proffer, the arguments and evidence pointing in the other direction convince us that it could not have been a plain error. 

And further, even if Collins could satisfy the first and second steps of plain-error review, he would still fail at the third: 

prejudice to his substantial rights. See Puckett, 556 U.S. at 141–

42. Collins must show a reasonable likelihood that, if the prosecutor had spoken up about his first proffer session, the outcome of the case would have been different. See Wyatt, 982 

F.3d at 1031 (finding no prejudice on plain-error review 

where court imposed sentence that both parties recommended, well below applicable guideline range); United States 

v. Navarro, 817 F.3d 494, 500– 01 (7th Cir. 2016) (finding prejudice on plain-error review where government’s sentencing 

recommendation likely influenced judge to impose higher 

sentence). 

For three reasons, the government’s silence about the 

safety-valve proffer did not prejudice Collins, either at sentencing or in his decision to plead guilty. First, as to sentencing, the government warned Collins in its memorandum 

(filed before the sentencing hearing), that the prosecutor 

planned to tell the judge that Collins had not cooperated. Despite this warning, Collins did not respond at sentencing by 

asserting that the court did not have enough information to 
No. 20-1198 9

sentence Collins fairly. Nor could he, given that the court already had received this information. 

Second, if the government had told the court that Collins 

made a safety-valve proffer, we see no reasonable likelihood 

that the sentence would have been any more favorable to him. 

See United States v. Salazar, 453 F.3d 911, 915 (7th Cir. 2006) 

(affirming on plain-error review; defendant did not show that 

his sentence would have been lower but for prosecutor’s 

breach). As Judge Feinerman correctly explained here, unless 

the government moved for a downward departure, a decision 

left to the prosecutor’s discretion, the court could not sentence 

Collins below the statutory minimum of fifteen years. The 

government did not move for a departure, and Collins does 

not challenge that decision. He wound up with the lowest sentence he could have received. 

With a lighter sentence not legally available here, Collins 

argues that he was prejudiced by the government’s breach because he was not allowed to withdraw his guilty plea. His theory is that, if the district court had known of the breach, it 

would have allowed Collins to withdraw his guilty plea. We 

see no reasonable likelihood of this outcome. District courts 

may allow defendants to withdraw their pleas only for a “fair 

and just reason.” Fed. R. Crim. P. 11(d)(2)(B). This is a heavy 

burden where the court conducted a thorough Rule 11 colloquy before accepting the plea. See United States v. Mays, 593 

F.3d 603, 607 (7th Cir. 2010). The typical “fair and just” reasons for permitting a defendant to withdraw pleas are claims 

of innocence or contentions that the plea was not knowing 

and voluntary. Id. 

Neither applies here. Collins does not claim innocence. 

And because any breach occurred at sentencing, “nothing” 
10 No. 20-1198 

can establish “that the Government’s breach of a plea agreement retroactively cause[d] the defendant’s agreement to 

have been unknowing or involuntary.” Puckett, 556 U.S. at 

137. Even if we assume there was a breach at sentencing here, 

it took the form of a failure to tell the judge once more what 

he already knew. 

There also is no reason to think Collins provided any substantial cooperation in that initial and incomplete proffer session, such that a presentation of the information by the government would have caused the judge to see Collins in a different light, especially after his own pre-sentencing breach of 

the plea agreement in refusing to provide the promised cooperation about co-defendants. We see no reason to think that 

the judge would have thought that the appropriate response 

to the asserted breach would have been to allow Collins to 

withdraw his pleas. Even if there had been a breach, Collins’s 

substantial rights were not violated. 

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

fourth prong of plain-error review: the likely effect on the fairness, integrity, and public reputation of the judicial proceedings. Puckett, 556 U.S. at 135, 142. When a remedy is warranted 

for breach of a plea agreement’s term on a sentencing recommendation, our “usual course” is to remand for resentencing 

(as opposed to allow a plea withdrawal). Navarro, 817 F.3d at 

503, n.1; see also United States v. Diaz-Jimenez, 622 F.3d 692, 696 

(7th Cir. 2010) (remanding for resentencing where prosecutor’s sentencing recommendation breached the plea agreement). But here, a resentencing by a different judge would 

again yield a prison term for Collins of no less than the statutory minimum of fifteen years. The result could not change in 

his favor. 
No. 20-1198 11

We recognize that Collins wants to withdraw his guilty 

plea, but he is not entitled to that relief. See Kernan v. Cuero, 

138 S. Ct. 4, 8 (2017) (emphasizing that Santobello left it to trial 

courts, on remand from a proven breach, to decide whether 

defendant’s remedy should be resentencing or an opportunity to withdraw his plea). As discussed above, Collins does 

not meet the standard criteria for a discretionary plea withdrawal. Because he received the minimum sentence allowed 

by law for his convictions, neither resentencing nor plea withdrawal is necessary to protect the fairness, integrity, or reputation of the courts. 

The judgment of the district court is AFFIRMED.