United States of America v. Nikole Sakellarion

The Honorable G. Patrick Murphy of the Southern District å
of Illinois, sitting by designation.
In the
United States Court of Appeals
For the Seventh Circuit
No. 10-2245
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
NIKOLE SAKELLARION,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 06 CR 922-6—Elaine E. Bucklo, Judge.
ARGUED JANUARY 18, 2011—DECIDED AUGUST 19, 2011
Before TINDER and HAMILTON, Circuit Judges, and
MURPHY, District Judge.å
TINDER, Circuit Judge. Nikole Sakellarion was involved
in cocaine distribution in the Chicago area. To her credit,
when her drug activity came to the attention of law
enforcement authorities, she provided substantial assis-

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2 No. 10-2245
tance to the investigators to implicate other drug distrib-
utors in exchange, of course, for a favorable plea agree-
ment. That agreement required the government to recom-
mend, and if accepted, the court to impose a sentence
about half as long as Sakellarion faced under a manda-
tory minimum sentencing provision. The district judge
accepted the agreement, which contained a waiver of
Sakellarion’s right to appeal, and the agreed-upon sen-
tence was imposed. Nonetheless, Sakellarion appeals,
complaining not about the sentence she received, but
rather about the fact that she did not receive an even
more favorable sentence that she had hoped to receive
as a result of a supplemental agreement negotiated after
she pled guilty under the original plea agreement. She
contends that the government acted in bad faith in
not fulfilling this agreement to amend the original plea
agreement. But we cannot review her complaint about
the supplemental agreement because Sakellarion’s orig-
inal plea agreement contained a waiver of her right
to appeal. Because Sakellarion never sought to with-
draw her plea of guilty entered under that agreement,
we have nothing to review. We must enforce the plea
agreement’s appellate waiver and dismiss Sakellarion’s
appeal.
I. Background
In the summer of 2006, George Chavez asked Sakellarion
to act as a cocaine sales intermediary between himself
and his customer Hector “Jerry” Cruz. Chavez and Cruz
had suffered a falling-out of sorts. So for the next three

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No. 10-2245 3
or four months, Chavez gave Sakellarion at least 4.5
ounces of powder cocaine about twice a week, typically
from Chavez’s Chicago home. Sakellarion then gave
Cruz the cocaine. Sometimes Sakellarion moved 9 or 10
ounces of cocaine, occasionally buying an ounce for
herself and distributing the rest to Cruz. In exchange,
Cruz cooked powder cocaine into crack for Sakellarion
or gave her a discounted price on his crack cocaine.
Sakellarion also purchased about an ounce or a half-ounce
of crack cocaine from Cruz at least twice a month for about
a year. Sakellarion also purchased similar quantities
of crack cocaine from Chavez about five times in 2006.
Sakellarion sold the drugs to her own customers.
Sakellarion admitted to distributing about 2.5 kilograms
of cocaine and about 570 grams of crack cocaine.
Sakellarion was indicted on March 8, 2007, along with
Chavez and five others, for conspiracy to possess
with intent to distribute and to distribute 5 kilograms
or more of mixtures and substances containing cocaine,
and 50 grams or more of mixtures or substances con-
taining cocaine base in the form of crack cocaine. See 21
U.S.C. §§ 846, 841(a)(1). The indictment alleged that the
conspiracy centered around Chavez’s “Paintball Explo-
sion” business that served both as a front for cocaine
sales and a laundry for the cash proceeds. Sakellarion
began cooperating with federal drug investigators as
soon as she was arrested on the federal charges, and in
fact, she actually began her cooperation with law enforce-
ment before that by working with local police officers
when she was arrested by them on a cocaine charge.
(Conversations she recorded with Cruz for the local police

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4 No. 10-2245
were simultaneously recorded on a Title III wiretap.)
Sakellarion eventually signed a written plea agree-
ment, binding under Rule 11(c)(1)(C) of the Federal
Rules of Criminal Procedure, which, if accepted by the
court, required it to impose a sentence that would be
50% less than the low end of the sentencing guidelines
or the statutory minimum, whichever was greater. The
agreement noted that the court’s authority to impose
a sentence below any mandatory minimum would
arise from the government’s recognition of her assist-
ance to the investigation pursuant to U.S.S.G. § 5K1.1 and
18 U.S.C. § 3553(e). The district court accepted Sakel-
larion’s guilty plea on July 25, 2008, reserving only the
question of whether the judge would also accept
the parties’ agreement on the sentence to be imposed.
No complaint is raised about the adequacy of the
guilty plea hearing, nor does Sakellarion contend that
she did not understand any aspect of the terms of her
plea agreement.
The Presentence Investigation Report (PSR) set
Sakellarion’s base offense level at 34 based on the type
and amount of drugs involved in the offense, and
credited her a 3-level reduction pursuant to U.S.S.G.
§ 3E1.1 for acceptance of responsibility. The PSR also
projected Sakellarion’s criminal history point total at 2
based on two prior convictions, one point for a battery
conviction in 2000 and the other for a theft conviction
in 2003. If both convictions counted, Sakellarion’s crim-
inal history category would be II. This was a critical
determination in the sentencing process and it is where
Sakellarion and the government parted ways. Sakellarion

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No. 10-2245 5
contended that the 2000 disposition (based on a guilty
plea) only involved traffic offenses and not a battery
conviction, and thus should not count for any criminal
history points. Sakellarion’s view would leave her with
only 1 point in her criminal history and place her in the
lower criminal history category I; more importantly, it
would also allow her to be eligible for the “safety valve”
reduction of two levels from her offense level. See 18
U.S.C. § 3553(f); U.S.S.G. §§ 2D1.1(b)(11), 5C1.2(a) (2009).
The “safety valve” would result in a guideline incarcera-
tion range of 87-108 months (offense level 29, criminal
history category I); with no “safety valve,” the range
was 121-151 months (offense level 31, criminal history
category II). (Keep in mind that the plea agreement
would yield her a sentence of one-half of the lower end
of those ranges.) Sakellarion contended that she only
remembered pleading to traffic-related offenses. But the
government maintained that the information in the
PSR about the battery conviction was correct. What
followed was a series of hearings intended to resolve
the dispute about that prior conviction. Yet even
after Sakellarion’s counsel obtained a transcript of the
2000 state court proceeding, the parties disputed its
meaning. At a September 29, 2009, sentencing hearing,
the district court indicated that it agreed with the gov-
ernment’s reading of Sakellarion’s criminal history.
Sakellarion requested a continuance of the hearing to
allow time to attempt to renegotiate her plea deal. Also
at that hearing, Pretrial Services reported that Sakel-
larion had recently tested positive for marijuana.
Sakellarion denied using marijuana and asserted that

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6 No. 10-2245
the test result could not have been correct. The sen-
tencing was continued until December of that year.
The parties never agreed on the safety valve but,
despite the positive drug test, the government did agree
to renegotiate the sentence portion of Sakellarion’s plea
agreement so Sakellarion would receive a 43-month
sentence. This would be the same sentence she would
have received if the safety valve had applied under the
original plea agreement. But at the December 15, 2009,
hearing, the Assistant U.S. Attorney (AUSA) reported
that although the government “had agreed to a lesser
sentence” of 43 months, Sakellarion tested positive
again—this time for some type of opiate. The AUSA
said that he would see whether this second positive
changed whether the government could “go forward
with an amended plea agreement,” a draft of which he
had already given to Sakellarion’s counsel. Sakellarion
again denied drug use and said she would pay to have
her hair tested to prove it. The district court postponed
the matter to give the AUSA an opportunity to confer
with his supervisors to assess the accuracy of the drug
testing procedures and to determine whether to pro-
ceed with the 43-month deal. At a March 18, 2010,
hearing, the AUSA told the court that the government
needed more time to determine whether there was evi-
dence of false positives in Sakellarion’s case and in
general and to decide whether to “go forward with
an amendment to the plea agreement.”
At the continuation of the sentencing hearing on
May 18, 2010, the AUSA told the court that Sakellarion

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No. 10-2245 7
tested positive a third time (this time for morphine) and
“as far as we are concerned, it’s over.” The AUSA
asserted that the testing procedures used by the Proba-
tion Office of the court were reliable and that the
testing facility’s employees received regular training.
He also reported that due to Sakellarion’s positive drug
tests, the government declined to go through with any
amendment to the plea agreement previously filed with
the court. Sakellarion challenged the prior “opiate” test’s
reliability because it was based on a urine sample and
that the testing facility’s employees were only trained
annually through nothing more than a PowerPoint pre-
sentation. Counsel for Sakellarion argued that her
client’s negative “hair strand” test was more reliable
and she offered that her client, at her own expense, would
take another “hair strand” test to refute the most
recent morphine result. Sakellarion argued that although
the government had discretion in whether to amend
her plea agreement, it could not act “arbitrarily and
capriciously” and that it was doing so by refusing to
reject the test results from Pretrial Services and further
retracting its offer to improve the bottom-line sentence
recommendation contained in the original agreement.
The district court found that Sakellarion failed to
prove defects in the testing procedures used by Pretrial
Services or that the government was not acting in good
faith. The court declined to continue the sentencing for
the purpose of any additional drug testing by the
defense and proceeded to conclude the sentencing
hearing that had begun many months before. The AUSA
moved for the 50% downward departure from the statu-

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8 No. 10-2245
tory mandatory minimum based on Sakellarion’s co-
operation from “the get-go” and did not back down
from the recommendation in the plea agreement that
Sakellarion be allowed the full reduction of 3 levels for
acceptance of responsibility, despite the adverse pretrial
release drug test results. Sakellarion did not seek to
withdraw her guilty plea. Thus, the court sentenced
Sakellarion pursuant to the original plea agreement
and imposed a sentence of 60 months’ imprisonment
followed by a period of supervised release and $100
special assessment. Sakellarion filed a timely appeal from
that sentence.
II. Analysis
Sakellarion’s plea agreement contains the following
waiver of her right to appeal:
Defendant further understands she is waiving
all appellate issues that might have been available
if she had exercised her right to trial. Defendant
is aware that Title 18, United States Code, Sec-
tion 3742 affords a defendant the right to appeal
her conviction and the sentence imposed. Ac-
knowledging this, if the government makes a
motion at sentencing for a downward departure
pursuant to Sentencing Guideline § 5K1.1, defen-
dant knowingly waives the right to appeal her
conviction, any pre-trial rulings by the Court, and
any part of the sentence (or the manner in which
that sentence was determined), including any
term of imprisonment and fine within the maxi-

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No. 10-2245 9
mums provided by law, and including any order
of restitution or forfeiture, in exchange for the
concessions made by the United States in this
Plea Agreement. In addition, defendant also
waives her right to challenge her conviction and
sentence, and the manner in which the sentence
was determined, in any collateral attack or future
challenge, including but not limited to a motion
brought under Title 28, United States Code,
Section 2255. The waiver in this paragraph does
not apply to a claim of involuntariness, or inef-
fective assistance of counsel, which relates
directly to this waiver or to its negotiation.
The government seeks this provision’s enforcement
through the dismissal of Sakellarion’s appeal. We have
repeatedly held “that a voluntary and knowing waiver
of an appeal is valid and must be enforced.” United States
v. Sines, 303 F.3d 793, 798 (7th Cir. 2002); see also United
States v. Woods, 581 F.3d 531, 533-34 (7th Cir. 2009);
United States v. Hare, 269 F.3d 859, 860-61 (7th Cir. 2001).
We enforce appellate waivers when their “terms are
express and unambiguous, and the record shows that
the defendant knowingly and voluntarily entered into
the agreement.” United States v. Aslan, ____ F.3d ____,
Nos. 08-1486, 08-1678, 08-3789 & 08-4136, 2011 WL 1793759,
at *6 (7th Cir. May 12, 2011). Of course, if a plea agree-
ment is unenforceable, “the waiver falls with the agree-
ment.” United States v. Mason, 343 F.3d 893, 894 (7th Cir.
2003); see also Hare, 269 F.3d at 860 (noting that we do not
enforce appellate waivers in “annulled” agreements). A
defendant may void a plea agreement in certain circum-

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10 No. 10-2245
stances, such as a material breach by the government, see
United States v. Quintero, 618 F.3d 746, 751-52 (7th Cir.
2010), or if the defendant pled guilty involuntarily, see
Mason, 343 F.3d at 894. Sakellarion does not argue that
her plea was involuntary or that the agreement, other
than its appellate waiver, is unenforceable. Indeed,
Sakellarion neither filed a motion at the district court
to withdraw her guilty plea nor does she argue on
appeal that the district court’s decision to accept her
plea agreement was somehow plainly erroneous. See
United States v. Thomas, 639 F.3d 786, 788 (7th Cir. 2011)
(enforcing an appellate waiver because the district
court’s decision to accept the plea agreement was not
plainly erroneous). Sakellarion also does not argue that
her appeal is outside the scope of the appellate waiver.
See, e.g., Aslan, 2011 WL 1793759, at *6. Instead, Sakellarion
alleges that the government acted in bad faith in with-
drawing from its agreement to amend, that is, improve,
her plea agreement. This bad faith, Sakellarion argues,
breached her original plea agreement, cancelling the
appellate waiver, but apparently not the rest of the plea
agreement.
We have long held that an appellate waiver “stands or
falls with the rest of the bargain.” United States v. Whitlow,
287 F.3d 638, 640 (7th Cir. 2002); see also Nunez v.
United States, 546 F.3d 450, 454 (7th Cir. 2008) (citing
United States v. Wenger, 58 F.3d 280 (7th Cir. 1995)). When
a district court rejects a defendant’s allegations that
the government acted in bad faith in breaching a
plea agreement, the defendant may not circumvent the
agreement’s otherwise valid appellate waiver by ap-

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No. 10-2245 11
pealing the bad faith ruling. See Whitlow, 287 F.3d at 640.
Stated otherwise, a mere “claim of breach” does not void a
waiver because that would make all appellate waivers
unenforceable as “talk is cheap.” Id. Thus, because
Sakellarion’s plea agreement with its waiver of her ap-
pellate rights remains an enforceable agreement be-
tween herself and the government, its appellate waiver
requires us to dismiss her appeal.
Even if Sakellarion succeeded in having her guilty plea
set aside, see Hare, 269 F.3d at 860-61, her options for
appellate review would be quite limited. If ultimately
convicted, Sakellarion could have sought review of her
bad faith allegation but such challenges have proven
difficult, see, e.g., Wade v. United States, 504 U.S. 181, 185-86
(1992) (limiting review of a refusal to file a substantial
assistance motion for unconstitutional motives such as
race, religion, or lack of a rational relationship to
legitimate state objectives); United States v. Deberry, 576
F.3d 708, 711 (7th Cir. 2009) (finding reasonable the gov-
ernment’s refusal to file a motion to reduce based on
an appellate waiver request), cert. denied, 130 S. Ct. 2060
(2010); United States v. Miller, 458 F.3d 603, 605 (7th Cir.
2006) (finding the government’s refusal to file a sub-
stantial assistance motion because the government did
not believe the defendant was forthcoming rationally
related to a government objective), although not insur-
mountable, see United States v. Wilson, 390 F.3d 1003,
1012-13 (7th Cir. 2004) (finding that conditioning the
filing of a Rule 35(b) motion on the defendant’s dropping
of an unrelated civil suit to be in bad faith and lacking
a legitimate government objective). Sakellarion’s success

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12 No. 10-2245
in challenging the government’s withdrawal from the
supplemental agreement as a violation of her right to
due process (as suggested at oral argument) seems even
more questionable, see, e.g., Mabry v. Johnson, 467 U.S.
504, 509-10 (1984) (permitting challenge of a guilty plea
under the Due Process Clause only when “not fairly
apprised of its consequences” or an “unfulfilled prom-
ise”), partially abrogated by Puckett v. United States, 556
U.S. 129, 129 S.Ct. 1423, 1430 n.1 (2009), because the
timing of the government’s agreement to amend her
original plea agreement meant that it could not have
prompted her to plead guilty and she fails to suggest
what other detrimental reliance she suffered as a result
of the government’s agreement to amend, see United
States v. Traynoff, 53 F.3d 168, 171 (7th Cir. 1995) (as-
suming that we must hold the government “to its agree-
ments that reasonably cause criminal defendants to take
other damaging actions”). But Sakellarion makes no
such argument, perhaps because the supplemental agree-
ment did not require her to do anything she had not
already done. It seemed to be simply an effort by the
parties to find a way to get her the benefit of the
“safety valve” when in fact she was not entitled to it.
We must also note that attempting to set aside her
guilty plea would have been quite risky if somehow
successful. Judicial review of decisions involving plea
agreements is quite limited because of the government’s
significant discretion over matters constitutionally as-
signed to the executive branch. See, e.g., Wayte v. United
States, 470 U.S. 598, 607 (1985) (“[T]he Government retains
‘broad discretion’ as to whom to prosecute.” (quoting

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No. 10-2245 13
United States v. Goodwin, 457 U.S. 368, 380 n.11 (1982)));
United States v. Scott, 631 F.3d 401, 406 (7th Cir. 2011)
(noting that prosecutorial discretion arises out of
Article II, section 3 of the Constitution, which assigns
the executive branch the duty to “take Care that the
Laws be faithfully executed”); United States v. Christian,
342 F.3d 744, 748-49 (7th Cir. 2003) (holding that
judicially estopping the government from charging the
appellant with a felony because his co-defendants were
charged with misdemeanors for the same incident would
“obliterate the usefulness of plea agreements”); Rodriguez
v. Peters, 63 F.3d 546, 563 (7th Cir. 1995) (refusing “to
second-guess the State’s Attorney’s exercise of discretion
in deciding not to prosecute [a cooperating co-gang
member] for murder”). To challenge the denial of the
supplemental agreement, Sakellarion would have to risk
giving up the very favorable treatment she was given in
the original plea agreement. That could be a large
sacrifice with a low potential for success. (This is
especially true because the district judge rejected the
allegation of bad faith after considering the facts
proffered to her.) But Sakellarion did not seek to
withdraw from her plea or from the original plea agree-
ment and the waiver of her right to appeal still stands.
Therefore, Sakellarion’s appeal is DISMISSED.
8-19-11

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