### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 20-1198

U NITED S TATES OF A MERICA, Plaintiff-Appellee ,

v.

L ARRY C OLLINS , also known as S COOTER , Defendant-Appellant

.

____________________ Appeal from the United States District Court for the Northern District of Il linois, Eastern Division. No. 1:15-CR-00379-3 — Gary Feinerman , Judge

.

____________________

A RGUED D ECEMBER 15, 2020

— D ECIDED F EBRUARY 3, 2021

____________________

Before K ANNE , H AMILTON , and B RENNAN , Circuit Judges

. H AMILTON , 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 o ff enses. 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 he2 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 a ffi rm. 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 su ff er 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 fi rearms at the houses and sold herointo street distributors. After Collins was charged with tra ffi cking heroin, his cooperation with the government became relevant to sentencing. His fi rst

a tt empt, 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 o ff enses involved fi rearms.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 fi rearm in furtherance of a drug tra ffi cking o ff ense, 18 U.S.C. § 924(c)(1)(A)(i). The fi rst charge carried a ten-year mandatory minimum sentence and the second a fi ve-year mandatoryNo. 20-1198 3

minimum consecutive to the fi rst, for a total minimum of fi fteen years in prison. The second episodes relevant to cooperation stem from the wri tt en plea agreement. Collins agreed to “fully and truthfully cooperate in any ma tt er.” In exchange, the governmentheld out the only remaining possibility for avoiding the mandatory minimum fi fteen years. If the government determinedthat 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 th e plea deal required Collins to cooperate with the government, an d that, if he did, he could receive a downward departure inhis sentence, below the statutory minimums. After discussing the agreement and ensuring that Collins understood his rights, as required by the detailed provisions of Federal Rul e 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, thegovernment 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 lawyer4 No. 20-1198

to schedule a meeting with the government. Again, Collins refused to a tt end. 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 th e statutory minimum. It explained that Collins had refused its three requests to provide “complete and truthful testimony” as required by the pleaagreement. Collins disputed the government’s position, saying that he had a tt ended one meeting, but that was the meeting where he declined to answ er 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 justi fi ed. The court sentenced Collins

to fi fteen 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 pro ff er, which occurred before he entered into the plea agreement. Collins says that he relied on the government’s promise when heNo. 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. Wya tt, 982 F.3d 1028, 1030 (7th Cir. 2020). A government breach of a plea ag reement can be a very serious

ma tt er, 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 di ff erent judge, or by allowing the defendant to withdraw his plea. Santobello v. New York , 404 U.S. 257, 262–63 (1971) ( fi nding 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., Pucke ttv. United States , 556 U.S. 129 (2009) (applying pl ain-error review to new claim on appeal of breach of plea ag reement); see Fed. R. Crim. P. 51(b) & 52(b). The Supreme Court explained in Pucke ttthat proving plain error is “di ffi cult, ‘as it should be.’” 556 U.S. at 135. Collins must show (1) that th ere was a breach that (2) was clear and obvious, which (3) a ff ected his substantial rightsand (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 was6 No. 20-1198

not “clear” or “obvious.” The plea agreement required the government to “make known at th e 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 a tt empts to secure from Collinshis “complete and truthful testimony” and that Collins refused to provide it. The prosecutor said nothing, however, about Collins’s pro ff er for safety-valve relief before he pleaded guilty. Even though the prosecutor was silent about this pro ff er, the district court was already aw are of it: Collins discussed it with the court at least four times—during two earlier motionhearings, in his sentencing memorandum, and at the sentencing hearing. And at no time did the government dispute the fact of that pro ff er.In the language of at least the federal criminal justice system, there is a di ff erence between admi tt ing one’s own guilt and “cooperating.” The safety valve requires a defendant to “truthfully provide[] to the Go vernment all information and evidence the defendant has concerning the o ff ense or o ff enses 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,” onthe 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 satis fi ed § 3553(e) and § 5K1.1 was the only way Collins could avoid the mandatory minimum of fi fteen years.No. 20-1198 7

What did the parties mean in requiring the government todisclose the defendant’s “cooperation” in this plea agreement? Only substantial assistance, or did the parties mean to include the original unsuccessful pro ff er under the safetyvalve? We believe the be tt er 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 fi fteen-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 pro ff er, and the defense did not suggest that th e 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 anythingpositive about his e ff orts to accept responsibility by providing truthful information about his own conduct. As we noted in Wya tt : Every judge and lawyer in the federal criminal justice system knows th at 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 be tt er informed and less likely than the defense to exaggerate thevalue. 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 substantial8 No. 20-1198

assistance available only upon government motion). That’s also why the presumptive remedy is reversal and resentencing before a new judge. Wya tt, 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 pro ff er, 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 fi rst and second steps of plain-error review, he would still fail at the third: prejudice to his substantial rights. See Pucke tt, 556 U.S. at 141– 42. Collins must show a reasonable likelihood that, if the prosecutor had spoken up about his fi rst pro ff er session, the outcome of the case would have been di ff erent. See Wya tt, 982 F.3d at 1031 ( fi nding no prejudice on plain-error reviewwhere 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) ( fi nding prejudice on plain-error review where government’s sentencing recommendation likely in fl uenced judge to impose higher sentence). For three reasons, the government’s silence about the safety-valve pro ff er 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 ( fi led before the sentencing hearing), that the prosecutorplanned 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 toNo. 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 pro ff er, we see no reasonable likelihood that the sentence would have b een any more favorable to him. See United States v. Salazar , 453 F.3d 911, 915 (7th Cir. 2006) (a ffi rming on plain-error review; defendant did not show that his sentence would have been lower but for prosecutor’s breach). As Judge Feinerman co rrectly explained here, unless the government moved for a downward departure, a decision left to the prosecutor’s discretio n, the court could not sentence Collins below the statutory minimum of fi fteen years. The government did not move for a departure, and Collins doesnot challenge that decision. He wound up with the lowest sentence he could have received. With a lighter sentence not legally available here, Collinsargues 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 co urt 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 heavyburden where the court conducted a thorough Rule 11 colloquy before accepting the plea. See United States v. Mays , 593F.3d 603, 607 (7th Cir. 2010). The typical “fair and just” reasons for permi tt ing a defendant to with draw 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 Governme nt’s breach of a plea agreement retroactively cause[d] the defendant’s agreement to have been unknowing or involuntary.” Pucke tt, 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 pro ff er 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 th at 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 relie f also fails to satisfy the fourth prong of plain-error review: the likely e ff ect on the fairness, integrity, and public reputation of the judicial proceedings. Pucke tt, 556 U.S. at 135, 142. When a remedy is warrantedfor 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 recommendatio n breached the plea agreement). But here, a resentencing by a di ff erent judge wouldagain yield a prison term for Collins of no less than the statutory minimum of fi fteen 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 whetherdefendant’s remedy should be resentencing or an opportunity to withdraw his plea). As discussed above, Collins doesnot meet the standard criteria for a discretionary plea withdrawal. Because he received the minimum sentence allowedby 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.