UNITED STATES of America, Plaintiff-Appellee, v. John R. WHITLOW, Defendant-Appellant, 287 F.3d 638

EASTERBROOK, Circuit Judge. In what has become a common sequence, a defendant who waived his appellate rights as part of a plea bargain, and received a substantial benefit in exchange, has failed to keep his promise. After being indicted for 30 financial crimes, John Whitlow pleaded guilty to four counts and the rest were dismissed. The plea agreement provides that “in exchange for the concessions made by the United States” Whitlow waives his rights to appeal and to seek collateral relief under 28 U.S.C. § 2255. The benefits of the agreement were substantial.

Whitlow not only obtained the dismissal of 26 counts but also received a two-level reduction in offense level for accepting responsibility — a big break, given that the district judge concluded that Whitlow had obstructed justice, which blocks an acceptance-of-responsibility reduction in all but extraordinary cases. U.S.S.G. § 3E1.1 Application Note 4.

Because of the two-level reduction Whit-low’s sentencing range was 97 to 121 months (he was sentenced to 108 months); without the reduction the range would have been 121 to 151 months, and extra counts of conviction would have added sentencing units, see § 3D1.1, that could have propelled the range higher still. To contest a decision as favorable as this is to tempt fate, for we have held that a defendant who breaks a promise not to appeal entitles the prosecutor to walk away as well. See United States v. Hare, 269 F.3d 859 (7th Cir.2001).

Prosecutors may be disinclined to do this if we affirm or dismiss the appeal despite the waiver. But in this case Whitlow wants a remand for resentencing — and in a confession of error the prosecutor agrees that he is entitled to it. Whitlow’s promise not to appeal has an exception. The district judge concluded that it is a close question whether the 2000 edition or the 2001 edition of the Sentencing Guidelines is the right version to apply. At the judge’s request, the prosecutor agreed to modify the waiver so that Whitlow could present this issue for appellate resolution.

Whitlow abused this opportunity by filing an appellate brief presenting eight issues rather than the agreed single issue. He contends, for example, that the judge erred in calculating the amount of loss for sentencing purposes, should not have added two levels for obstructing justice, and should have departed downward on the ground that he is a compulsive gambler. These arguments are blocked by the waiver of appeal. In response to a motion to strike these arguments from his brief, Whitlow insists that a breach of the plea agreement by the prosecutor cancels his waiver.

One problem with this argument is that Whit-low presented to the district judge his contention that the prosecutor broke his promise by failing to recommend a three-level reduction for acceptance of responsibility. The judge found Whitlow’s argument to be insubstantial. So it has been authoritatively determined that the government has kept its part of the bargain. What Whitlow must be arguing, then, is not that a breach allows appeal, but that a claim of breach allows appeal. That would make all waivers unenforceable as a practical matter, for talk is cheap.

Other defendants who planned to keep their promises, and sought to trade the waiver for concessions on the prosecutor’s part, could not do so, for they could not distinguish themselves from those who planned to appeal notwithstanding their promises. To facilitate bargains it is necessary to enforce the whole deal with respect to all defendants. A waiver of appeal does not authorize a prosecutor to dishonor his promises; instead it determines who will be the judge of a claim that breach has occurred. “Waiver of appeal ... means that the final decision will be made by one

Article III judge rather than three

Article III judges; all substantive entitlements are unaffected.” Hare, 269 F.3d at 861. A defendant who contended that the prosecutor’s breach came after judgment in the district court would have an argument for a collateral attack designed to enforce that aspect of the promise; but here the asserted breach preceded judgment. There is a second problem. A prosecutor’s failure to keep one part of a plea agreement usually leads to a judicial order of specific performance; it does not relieve the defendant of all promises.

Unless a prosecutor’s transgression is so serious that it entitles the defendant to cancel the whole plea agreement, a waiver of appeal must be enforced. We have held time and again that a waiver of appeal stands or falls with the rest of the bargain. See, e.g., United States v. Jeffries, 265 F.3d 556 (7th Cir.2001); United States v. Behrman, 235 F.3d 1049 (7th Cir.2000); United States v. Wenger, 58 F.3d 280 (7th Cir.1995).

Whitlow “did not ask the district court to set aside his plea, and even on appeal he does not seek that relief; he wants the benefits of the agreement shorn of one detriment, an outcome to which he could not be entitled.” Hare, 269 F.3d at 860-61. But Whitlow did appeal and raise arguments other than those excepted from the waiver. Specific performance is a poor remedy for this kind of breach by the defendant; once an appeal is taken and a brief filed, the prosecutor must respond, and the resources sought to be conserved by the waiver have been squandered. Money damages are unavailable.

The only potentially effective remedy when a defendant breaks a promise not to appeal is to allow the prosecutor to withdraw some concessions. That is why we concluded in Hare that the defendant’s appeal, in disregard of a promise not to do so, exposes him to steps that can increase the sentence. Let us turn briefly to the one issue that Whitlow is entitled to raise. Defendants must be sentenced under the Guidelines manual in force when sentencing occurs. See 18 U.S.C. § 3553(a)(4)(A); U.S.S.G. § 1B1.11.

Whitlow’s sentencing began on October 31, 2001, the last day of the 2000 edition, and concluded on November 1, 2001, the first day of a new edition’s effectiveness. The district judge concluded that because the sentencing hearing spanned two versions, it would be appropriate to use whichever manual was more favorable to the defendant. At the time of sentencing, both the probation office and the judge believed that the 2000 manual was more favorable to Whitlow, and it was used in all calculations.

Whitlow argues on appeal&emdash;and the prosecutor now concedes&emdash;that the 2001 manual is on balance more favorable. We agree with the prosecutor that a remand is appropriate so that Whitlow may be resentenced under the 2001 manual. It was in force on the date sentence was pronounced and thus is the version specified by Congress and the Sentencing Commission. The sentence is vacated, and the ease is remanded for further proceedings consistent with this opinion.

Whitlow’s breach of his promise not to appeal, combined with the enhancement for obstruction of justice, make it exceptionally hard to justify when calculating the new sentence any reduction for acceptance of responsibility. Hare affords the prosecutor the opportunity to reinstate any of the dismissed charges; the prosecutor should alert Whit-low and the district judge within 10 days of our mandate if he desires to exercise that option.