United States of America v. James O’n Eill

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-2589
U NITED S TATES OF A MERICA ,
Plaintiff-Appellee,
v.
J AMES O’N EILL ,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 01 CR 802—Matthew F. Kennelly, Judge.
____________
A RGUED J ANUARY 9, 2006—D ECIDED F EBRUARY 10, 2006
____________
Before P OSNER , E VANS , and S YKES , Circuit Judges.
E VANS , Circuit Judge. Mario Morales was a crooked
Chicago police officer who soiled his badge by ripping off
drug dealers. The means to that end—described in an in-
dictment alleging a federal RICO violation, see 18 U.S.C.
§ 1962(d)—were fairly simple, and for our purposes we
recount just one of his brazen acts of criminality.
On a May day in 2001, Morales, cloaked in the trappings
of a narcotics officer—police badge around his neck and
service revolver in hand—entered the residence of a
Chicago drug dealer named Jerome Carman. Morales had
two nonpolice-officer cohorts with him, James O’Neill (the
defendant in this case) and Gerald Cooper. Morales, O’Neill,

-- 1 of 21 --

2 No. 04-2589
and Cooper proceeded to relieve Carman of more than 100
kilograms of marijuana and $10,000 in cash. Morales got
most of what was obtained.
Eventually, Morales, O’Neill, Cooper, and two others were
charged in a superseding indictment with a bevy of charges.
Morales ultimately entered a guilty plea to two counts:
RICO conspiracy (count 1) and possessing a firearm during
and in relation to a drug trafficking crime (count 9). He was
sentenced to 210 months on the racketeering count and a
consecutive 84 months on the gun charge, a total of 294
months.
The government, believing that O’Neill’s substantial
cooperation was critical to its case against Morales, didn’t
want him to receive a stiff (Morales-type) sentence. That
cooperation, among other things, included wearing a
wire while meeting several times with an armed Morales.
Accordingly, a negotiated lock-in guilty plea under Rule
11(e)(1)(C) of the Federal Rules of Criminal Procedure
was agreed to. The agreement, upon O’Neill’s guilty plea to
the two same charges that Morales was convicted under,
called for a total sentence of 124 months. Unfortunately
for O’Neill, the judge balked. He said:
I will tell you that I am inclined not to agree to have
the sentence bound by the specific sentence you have. I
am not saying that I would not ultimately impose that
sentence. It is possible that I might impose that sen-
tence, and it is possible that I might be persuaded that
that is the appropriate sentence. But I don’t think I am
willing to agree to a plea agreement that says that is
the only sentence I can impose.
It is really a question—as I said, at the outset, it is
really a question of—I don’t have any quarrel with the
proposition that Mr. O’Neill should get credit and
potentially very significant credit for what he has
done in assisting the government, wearing the wire and

-- 2 of 21 --

No. 04-2589 3
being willing to testify against the people in this case,
enabling you to charge new people in the case, enabling
you in part to go after other people who aren’t even in
this case and so on, but I object to a provision which
basically says this is the exact sentence you have to
impose. So I am not going to go along with that provi-
sion.
The judge then told O’Neill that he could back out of the
plea deal, adding:
As I said, I have no quarrel with the 5K1.1 motion, and
that motion, I will tell you, unless I hear something
between now and when you come back that I have not
heard yet, that motion will be granted, and it is simply
a question of deciding how much of a reduction that Mr.
O’Neill would get as a result of that.
Should it be the approximately 100 months off . . . the
low end, or should it be something lesser than that?
Quite frankly, I don’t think it would be greater than
that, but should it be 100 months or should it be
something less? In fact, I can’t imagine circumstances
in which it would be greater than that, I will just tell
you that.
But I am not ruling out the possibility that I would
agree to that sentence after I, you know, gave you a
chance to give me another pitch for that. But unless
this is rewritten in a way that gives me leeway in
making my own determination of how much of a de-
crease should be given, then I am not going to go along
with it.
So I am—I don’t know if the word is rejecting or
disagreeing. I am disagreeing or rejecting the term of
the particular term of the plea agreement that provides
that the sentence will be 124 months. I am not rejecting
the part that provides for a departure under 5K1.1, but

-- 3 of 21 --

4 No. 04-2589
you are going to have to decide on your end what it is
you want to do at this point.
Rebuffed by the judge, the parties returned to the draw-
ing board. Three weeks later the case was again in court,
and the judge was advised that the parties were negotiating
in an attempt to draft a plea agreement that would be
acceptable to the court. During this proceeding, the judge
observed:
I will tell you this. I know this isn’t your problem, but
to the extent you have a problem, I don’t have a prob-
lem with there being a low end on it, okay. But what I
do have a problem with is something that says that it
has got to be this or this or, you know, somewhere in
here.
Eventually responding, O’Neill’s counsel observed:
So, Judge, it leaves us between—sort of between a
rock and a hard place. Mr. O’Neill desires to plead
guilty, but, Judge, to put it, if I may speak freely, he
is afraid of getting whacked, and basically by having an
agreement that provides for—it basically would be a
free-fall upward departure.
Responding to this comment, the judge remarked:
There is no free-fall upward departure. I don’t even
know what you are talking about. You have got a—he
has pled to two counts, okay. And assuming I go
along with the agreement that has been made to
drop the other counts, you know what the maximum is.
You know what the range is. I have told you that I
am willing to give some consideration under 5K1.1
to his cooperation. So the term, upward departure,
doesn’t really apply here.
The question is the extent of the downward depar-
ture. That is what we are talking about . . . .
. . . .

-- 4 of 21 --

No. 04-2589 5
I will tell you what I said a minute ago and what
I said in Mr. Cooper’s case is in these cases I am not
willing to agree upfront to a specific sentence or even a
range of sentences. And you already know what
the range is. So like I said, it is 259 on down.
The parties next appeared in court two weeks later with a
modified plea agreement in hand. The rather complicated
sentencing provision contained in paragraph 19 read:
19. At the time of sentencing, the government shall
make known to the sentencing judge the extent of
defendant’s cooperation, and, assuming the defendant’s
full and truthful cooperation, shall move the Court,
pursuant to Sentencing Guideline 5K1.1 and 18 U.S.C.
§ 3553(e), to depart from the applicable sentencing
guidelines range and the statutory minimum sentences
provided for by 21 U.S.C. § 841(a)(1) and 18 U.S.C.
§ 924(c)(1)(A), and to impose the specific sentence
agreed to by the parties as outlined below. Defendant
understands that the decision to depart from the
applicable guidelines range and the statutory minimum
sentence rests solely with the Court. However, this Plea
Agreement is governed, in part, by Federal Rule of
Criminal Procedure 11(c)(1)(C). That is, the parties
have agreed that the sentence imposed by the Court
shall include a term of imprisonment in the custody of
the Bureau of Prisons of between 100% and 50% of the
low end of the combined sentencing range for offenses
set forth in Counts One and Nine. Each party reserves
the right to argue at sentencing their position as to the
amount of the downward departure within this range.
Other than the agreed term of incarceration, the parties
have agreed that the Court remains free to impose the
sentence it deems appropriate. If the Court imposes a
sentence within this agreed range of incarceration, the
defendant may not withdraw this plea as a matter of
right under Federal Rule of Criminal Procedure 11(c)

-- 5 of 21 --

6 No. 04-2589
and (d). If, however, the Court refuses to impose a sen-
tence within this agreed range of incarceration, thereby
rejecting the Plea Agreement, or otherwise refuses to
accept the defendant’s plea of guilty, this Agreement
shall become null and void and neither party will be
bound thereto.
With O’Neill’s guilty plea (which, by the way, he has
never asked to withdraw) in place, the judge responded to
paragraph 19 by saying:
The way that the sentence will be calculated is this.
I will figure out what the sentencing range is under the
sentencing guidelines, including whatever mandatory
minimums and consecutive things apply, which I have
discussed with you on a previous occasion. That will
give us a range. What this document says is that
whatever the low end of the range is, that your sentence
is going to be somewhere between the low end of that
range and half of that.
After all was said and done, following a lengthy recitation
of O’Neill’s significant cooperation, the government recom-
mended a sentence, using a 5K1.1 motion for a downward
departure as the vehicle to get there, of 124 months.
O’Neill’s attorney seconded the motion. The judge, however,
despite observing that O’Neill’s cooperation “was significant
in taking down Mr. Morales,” opted for a stiff sentence,
noting that O’Neill was a danger to the community who
needed “to be incapacitated.” Wrapping up, the judge said:
I am going to grant the motion for a departure, but it is
not going to be a departure beyond the low end of the
applicable range. I am departing off the high end of the
range.
The sentence imposed was 224 months, 140 months on
count one and a consecutive 84 months on count nine.
O’Neill appeals his sentence, arguing, among other

-- 6 of 21 --

No. 04-2589 7
things, that the judge impermissibly injected himself
into the plea process in several respects.
The government concedes that this case must be returned
to the district court for further proceedings per United
States v. Paladino, 401 F.3d 471 (7th Cir. 2005), because
the district judge, when fashioning the sentence, viewed the
guideline range, 224 to 259 months, as mandatory. And that
view, of course, was correct as O’Neill was sentenced prior
to the decision in United States v. Booker, 543 U.S. 220, 125
S. Ct. 738 (2005). But given the unusual circumstances of
this case, we think a full remand, rather than a limited
Paladino remand, is in order.
Judges, it is well-settled, may not participate in plea
negotiations. Fed. R. Crim. P. 11(c)(1). This proscription
against judicial intervention in plea negotiations is
widely construed as categorical. See United States v. Kraus,
137 F.3d 447, 452 (7th Cir. 1998). However, it is also
certainly well-established that judges are permitted to take
an active role in “evaluating the agreement” in Rule 11(c)
cases. Id. at 452. Where to draw the line between “interven-
tion” and “evaluating” is where the rubber meets the road
in this case.
We think what the judge did here comes close to crossing
the line in a Rule 11(c) case. The rule, and the better
practice, is simply to reject (without a lot of editorial
comment) the plea, give the defendant an opportunity to
withdraw it, and advise the defendant that if the plea
continues, the judge is not bound by the party’s plea
agreement.
That said, given that the case must go back for further
proceedings under Paladino, we think it unnecessary to
definitively express a view as to whether the judge crossed
the permissible line drawn by Rule 11, Kraus and other
cases involving the role of the judge at sentencing. Because
this case must go back anyway, we think it’s best to

-- 7 of 21 --

8 No. 04-2589
send it back completely and let the parties start the sen-
tencing process again from the go position.
We take this step because we are troubled by several
aspects of the sentencing proceeding as it dragged through
three separate hearings over six weeks. At one point, the
judge expressed the view that O’Neill was getting an
undisclosed break in the plea agreement by not pleading to
a drug-related offense which would probably make him a
career offender under the guidelines. This was incorrect. At
the time of his plea, O’Neill did not have requisite prior
convictions for career offender status.
We are also concerned about certain statements that
could have led O’Neill to believe that the recommended 124-
month term still might be entered. This carrot-on-a-stick
approach—“I’m not saying that I would not impose that
[124 month] sentence. It is possible that I might impose
that sentence and it is possible that I might be persuaded
that that is the appropriate sentence”—very well could have
lulled O’Neill into a false sense of comfort. Better the judge
says nothing in a situation like this than give, from all
appearances here, false hope.
Lastly, the government’s 5K1.1 motion was really not
granted despite what the judge said—“I have no quarrel
with the 5K1.1 motion.” The “mandatory” guideline range
was, as we said, 224 to 259 months. The sentence im-
posed was 224 months. A sentence at the low end of a
guideline range is not a departure.
For these reasons, we vacate O’Neill’s sentence and
remand the case to the district court for resentencing.
Circuit Rule 36 shall apply on remand.

-- 8 of 21 --

No. 04-2589 9
P OSNER , Circuit Judge. We have a three-way split. Judge
Evans wants to hold O’Neill to his guilty plea, but remand
for resentencing before a different judge. Judge Sykes wants
to grant O’Neill just the limited Paladino remand. My view
is that the plea should be set aside. I join Judge Evans’s
proposed disposition, however, because his view is nearer to
mine than Judge Sykes’s is, because we need to decide the
case, and because Judge Evans’s proposed disposition does
do a kind of rough justice; for O’Neill’s primary desire is
just to be resentenced by another judge rather than to
reopen plea negotiations. Nevertheless, at the risk of
seeming a fusspot, I cannot accept Judge Evans’s analysis.
I know that the life of the law has not been logic, but logic
does have its claims, which in this case seem to me compel-
ling. Either O’Neill was tricked into pleading guilty or he
was not. If he was, the logical remedy is to set aside the
plea; if he was not, then as Judge Sykes believes he is
entitled to nothing more than a Paladino remand. I think
the guilty plea should be set aside, and thus that O’Neill
should not be subjected to the risk that the judge to whom
the case is reassigned may think Judge Kennelly got it right
and sentence O’Neill to the same 224 months.
I do not agree with Judge Sykes that O’Neill “just wants
to be resentenced.” That is what he’d most like, all right,
but as I have said it is not relief to which he is legally
entitled. He preserved his (alternative) claim for vacation of
the plea, stating in his brief: “Because of the manner in
which and the extent to which the district court partici-
pated in the plea negotiations in this case, Mr. O’Neill
should be entitled to the opportunity to negotiate a plea free
of any actual or apparent intervention by the court.” We
pressed his lawyer at argument: “So that means,” one of us
asked, “it was an involuntary plea, so he should be given a
chance to reconsider, right?” And the lawyer said, “Right.”
The judge continued, “Isn’t that the logic of your position?
Vacate the plea, go back to the drawing board, and if there’s

-- 9 of 21 --

10 No. 04-2589
a new plea or if there’s a trial, it will be before a different
judge.” The lawyer replied, “Yes, your honor.”
O’Neill had been charged with nine counts of serious
drug-related offenses but had negotiated a plea agree-
ment whereby he would plead guilty to two of them and
receive a sentence of 124 months, 100 months below the
bottom of the guideline range applicable to his offenses, in
recognition of the substantial assistance that he had given
the government in rounding up his accomplices. Section
5K1.1 of the sentencing guidelines authorizes a below-
guidelines sentence if the government moves for one on
the basis of the defendant’s having given the govern-
ment substantial assistance.
The agreement provided that if the judge did not agree to
the 124-month sentence, the agreement was void. (That is,
it was an agreement made on the authority of Rule
11(c)(1)(C) of the Federal Rules of Criminal Procedure.) The
judge refused to go along, saying that he rejects as a matter
of principle a plea agreement that specifies a particular
sentence and hinting that he thought 124 months too
lenient a sentence considering the scope of the defendant’s
criminal activity. The parties then submitted a new agree-
ment which did not specify a sentence but did limit the
sentencing range to between the bottom of the applicable
range (224 to 259 months) and 50 percent of that bottom,
that is, to between 112 and 224 months. The judge accepted
the new agreement and sentenced the defendant to 224
months, the bottom of the guidelines range and therefore
the top of the range authorized by the second plea agree-
ment.
Obviously the judge thought 124 months, the sentence
that the parties had agreed on, too lenient; but as an
original matter one well might wonder what business it is
of a judge to decide that the government has given too
generous a punishment discount to the defendant (and

-- 10 of 21 --

No. 04-2589 11
has therefore agreed to too lenient a sentence) in exchange
for the defendant’s assistance to the government. The
decision whether to give such a discount and if so how great
a one is quintessentially an exercise of prosecutorial
judgment, balancing the deterrent and incapacitative
benefits to the government of a longer sentence against
the benefits to the government of obtaining the defen-
dant’s assistance and encouraging other criminals to
assist the government. United States v. Forney, 9 F.3d 1492,
1503 n. 4 (11th Cir. 1993); United States v. Wills, 35 F.3d
1192, 1197-98 (7th Cir. 1994) (dissenting opinion); cf.
Melendez v. United States, 518 U.S. 120, 125-27 (1996).
The exercise of prosecutorial discretion is a prerogative of
the executive branch of government. Wayte v. United States,
470 U.S. 598, 607 (1985); United States v. Giannattasio, 979
F.2d 98, 100 (7th Cir. 1992). Judges in our system do not
double as prosecutors, as we had occasion to emphasize in
In re United States, 345 F.3d 450, 454 (7th Cir. 2003),
noting that “paradoxically, the plenary prosecutorial power
of the executive branch safeguards liberty, for, in conjunc-
tion with the plenary legislative power of Congress, it
assures that no one can be convicted of a crime without the
concurrence of all three branches . . . . When a judge
assumes the power to prosecute, the number shrinks to
two.” In that case we reversed the district judge’s appoint-
ment of a special prosecutor to prosecute a crime that the
Justice Department had decided not to prosecute. In United
States v. Zingsheim, 384 F.3d 867, 872-73 (7th Cir. 2004),
we similarly reversed a standing order by a district judge
that imposed various restrictions on motions by prosecutors
to reduce a defendant’s sentence in recognition of his
assistance to the government. A judge’s decision not to
permit the Justice Department to reward a cooperating
defendant with a lighter sentence is an equally unjustified
interference with the prosecutorial function.

-- 11 of 21 --

12 No. 04-2589
And when a judge does this, the adversarial method,
which is fundamental to Anglo-American jurisprudence,
may be compromised, as it was in this case. Although the
Department of Justice is dutifully defending the judge’s
action, it is doing so to maintain good relations with the
district court, not because it thinks that what the judge did
was right. The judge upended the Department’s own
agreement.
There is also a futility to such judicial interventions, since
the prosecution can give a defendant a sentencing discount
by dropping counts or otherwise altering the charges
against him, and its decision is not judicially reviewable.
Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978); United
States v. Smith, 953 F.2d 1060, 1063 (7th Cir. 1992). But
presumably the 5K1.1 route has some advantages to the
government or else it wouldn’t use the device as frequently
as it does.
The principle that judges in our system are not pros-
ecutors might be thought implicit in the allocation of duties
between the executive and the judiciary made by Articles II
and III of the Constitution, but it exists in tension with the
principle, also rooted in the Constitution, that Congress
defines federal crimes and prescribes the punishments for
them. Courts have therefore assumed, though perhaps with
inadequate attention to the executive’s prosecutorial
prerogatives, that Congress can forbid all sentencing
discounts for cooperation with the government and in the
alternative can delegate its control over the discounts to the
judiciary. E.g., United States v. Spillman, 924 F.2d 721,
724-25 (7th Cir. 1991).
Congress followed the alternative route in the Sentencing
Reform Act, which provides in 18 U.S.C. § 3553(a) that
The court shall impose a sentence sufficient, but not
greater than necessary, to comply with the purposes set
forth in paragraph (2) of this subsection. The court, in

-- 12 of 21 --

No. 04-2589 13
determining the particular sentence to be imposed,
shall consider—
(1) the nature and circumstances of the offense and the
history and characteristics of the defendant;
(2) the need for the sentence imposed—
(A) to reflect the seriousness of the offense, to
promote respect for the law, and to provide just
punishment for the offense;
(B) to afford adequate deterrence to criminal
conduct;
(C) to protect the public from further crimes of
the defendant; and
(D) to provide the defendant with needed educa-
tional or vocational training, medical care, or
other correctional treatment in the most effective
manner . . . .
(3) the kinds of sentences available;
* * *
(6) the need to avoid unwarranted sentence disparities
among defendants with similar records who have been
found guilty of similar conduct; and
(7) the need to provide restitution to any victims of the
offense.
The criteria set forth in (a)(1), (2), and (6) arm judges to do
what the district judge did here—reject as being too lenient
a sentence specified in a negotiated guilty plea. United
States v. Torres-Echavarria, 129 F.3d 692, 696-97 (2d Cir.
1997); see also Fed. R. Crim. P. 11(c)(3)(A), which autho-
rizes the district court to reject a Rule 11(c)(1)(C) plea
agreement, and United States v. Kraus, 137 F.3d 447,
453 (7th Cir. 1998).

-- 13 of 21 --

14 No. 04-2589
At the hearing on whether to accept the initial agreement
and thus sentence the defendant to 124 months, the district
judge remarked: “I assume you [the prosecutor] are going to
make a motion for downward departure. I don’t have any—I
am not going to have any issue with the concept of a
downward departure based on substantial assistance. What
this is about to me is the extent of it.” He then heard
argument by the prosecutor concerning the extent of the
defendant’s cooperation, and then announced:
I will tell you that I am inclined not to agree to have the
sentence bound by the specific sentence you have. I am
not saying that I would not ultimately impose that
sentence. It is possible that I might impose
that sentence, and it is possible that I might be per-
suaded that that is the appropriate sentence. But
I don’t think I am willing to agree to a plea agreement
that says that is the only sentence I can impose. It is
really a question—as I said, at the outset, it is really a
question of—I don’t have any quarrel with the proposi-
tion that Mr. O’Neill should get credit and potentially
very significant credit for what he has done in assisting
the government, wearing the wire and being willing to
testify against the people in this case, enabling you to
charge new people in the case, enabling you in part to
go after other people who aren’t even in this case and so
on, but I object to a provision which basically says this
is the exact sentence you have to impose. So I am not
going to go along with that provision.
After reminding the defendant that he was now free to
withdraw his guilty plea, the judge added:
As I said, I have no quarrel with the 5K1.1 motion, and
that motion, I will tell you, unless I hear something
between now and when you come back that I have not
heard yet, that motion will be granted, and it is simply
a question of deciding how much of a reduction that Mr.

-- 14 of 21 --

No. 04-2589 15
O’Neill would get as a result of that. Should it be the
approximately 100 months off…the low end, or should
it be something lesser than that? Quite frankly, I don’t
think it would be greater than that, but should it be 100
months or should it be something less? In fact, I can’t
imagine circumstances in which it would be greater
than that, I will just tell you that. But I am not ruling
out the possibility that I would agree to that sentence
after I, you know, gave you a chance to give me another
pitch for that. But unless this is rewritten in a way that
gives me leeway in making my own determination of
how much of a decrease should be given, then I am not
going to go along with it. So I am—I don’t know if the
word is rejecting or disagreeing. I am disagreeing or
rejecting the term of the particular term of the plea
agreement that provides that the sentence will be 124
months. I am not rejecting the part that provides for a
departure under 5K1.1, but you are going to have to
decide on your end what it is you want to do at this
point.
At a subsequent hearing, the defendant’s lawyer told
the judge, “So, Judge, it leaves us between—sort of between
a rock and a hard place. Mr. O’Neill desires to plead guilty,
but, Judge, to put it, if I may speak freely, he is afraid of
getting whacked, and basically by having an agreement that
provides for—it basically would be a free-fall upward
departure.” The judge responded:
There is no free-fall upward departure. I don’t even
know what you are talking about. You have got a—he
has pled to two counts, okay. And assuming I go
along with the agreement that has been made to
drop the other counts, you know what the maximum is.
You know what the range is. I have told you that I
am willing to give some consideration under 5K1.1
to his cooperation. So the term, upward departure,
doesn’t really apply here. The question is the extent

-- 15 of 21 --

16 No. 04-2589
of the downward departure. That is what we are talking
about. . . . I will tell you what I said a minute ago and
what I said in Mr. Cooper’s case is in these cases I am
not willing to agree upfront to a specific sentence or
even a range of sentences. And you already know what
the range is. So like I said, it is 259 on down.
A careful listener to what the judge said would have
concluded the following: the judge as a matter of prin-
ciple never accepts a stipulated sentence (a mistaken policy,
by the way, as I’ll point out, but that is beside the present
issue); the judge accepted the government’s representation
that the defendant had rendered substantial assistance
warranting a significant discount and thus the granting of
a 5K1.1 motion; the judge might go along with the 100-
month discount, but that was probably the most he would
permit; probably the discount would be somewhat less.
The careful listener would have been deceived. The
defendant got no discount at all. True, he was sentenced
at the bottom of the guidelines range, but you can get
such a sentence without filing a 5K1.1 motion. (The judge
had never signaled that he might impose a sentence
above the bottom of the range.) Such a motion is designed
to get you below the guidelines range. United States v.
Joetzki, 952 F.2d 1090, 1097 (9th Cir. 1991) (“ ‘adjustments’
and ‘departures’ are distinctly different concepts under
the Guidelines. Adjustments are changes to an offense level
within the Guidelines. Departures, on the other hand, are
sentences imposed outside the Guidelines”) (citation
omitted); see also United States v. Amedeo, 370 F.3d 1305,
1312 n. 5 (11th Cir. 2004); United States v. Harotunian, 920
F.2d 1040, 1043 (1st Cir. 1990); cf. United States v.
McMutuary, 217 F.3d 477, 486 (7th Cir. 2000). When at the
final sentencing hearing the judge said that he was grant-
ing a downward departure, only “I am departing off the
high end of the range,” he was either kidding or misspeak-
ing, for that is not a departure at all. A departure is a
sentencing discount or bonus that results in a sentence that

-- 16 of 21 --

No. 04-2589 17
is not within the guidelines range. In effect the judge denied
the 5K1.1 motion, contrary to what he said he would do.
I am sure the judge was acting in good faith, but with the
benefit of hindsight it is apparent that he was playing a cat
and mouse game with the defendant. The defendant had a
plea agreement with the government that specified a
sentence that both he and the government wanted. He did
not want to go to trial, possibly on more counts, and face a
much higher sentence. The judge misled him by signaling
that while the defendant would probably face a higher
sentence if he pleaded guilty than 124 months, it would not
be much higher.
Sentencing judges are placed in a quandary by being
authorized on the one hand to reject a plea that specifies a
sentence that the judge considers too lenient and on the
other hand being forbidden by Fed. R. Crim. P. 11(c)(1) “to
participate in these discussions,” that is, the discussions
between the prosecutor and the defense lawyer or defendant
that resulted in the plea agreement. If the judge gives no
explanation for why he is rejecting the agreement, the
defendant is left in the dark, but if he explains the grounds
of his rejection he may be thought to have initiated and
participated in a discussion looking to the negotiation of a
new plea agreement. Reconciling these directives is the
judicial equivalent of squaring the circle, if one may judge
from cases such as United States v. Kraus, supra, 137 F.3d
at 453-54. It is another reason against the district judge’s
policy of refusing to accept the sentence negotiated by the
parties.
But even if it would have been proper for the judge just to
reject the stipulated sentence with no comment other than
that he doesn’t accept such stipulations, or with the com-
ment that 100 months were much too much credit for the
assistance the defendant had given the government, it was
improper to create the impression that the sentence would

-- 17 of 21 --

18 No. 04-2589
be close to what the agreement had specified and then
impose a much harsher sentence. The judge pulled the rug
out from under the defendant. We should not countenance
such behavior. The defendant should be allowed to with-
draw his plea.
S YKES , Circuit Judge, dissenting. Judge Kennelly did not
impermissibly participate in plea negotiations in violation
of Rule 11(c)(1). Rather, he explained his reasons for
rejecting the parties’ initial plea agreement, as Kraus
explicitly requires. United States v. Kraus, 137 F.3d 447,
453 (7th Cir. 1998).
A defendant “has no absolute right to have his guilty plea
accepted by the court.” Id. (citing Santobello v. New York,
404 U.S. 257, 262 (1971)). Rule 11(c)(1) prohibits judicial
participation in plea negotiations, but when a
plea agreement is presented to the court for approval, “it is
not only permitted but expected that the court will take an
active role in evaluating the agreement.” Id. at 452. Prose-
cuting criminal offenders is an executive function
but sentencing is a shared power. Mistretta v. United States,
488 U.S. 361, 390 (1989); United States v. Spillman, 924
F.2d 721, 724 (7th Cir. 1991). The court may reject a plea
agreement because it calls for a sentence that is too lenient
or too harsh or because it unduly limits the court’s sentenc-
ing discretion. Kraus, 137 F.3d at 453; see also F ED . R.
C RIM . P. 11(c)(3)(A).
The court’s duty of independent evaluation extends
with special force to “lock in” plea agreements under
Rule 11(c)(1)(C). “[W]here the parties have agreed to a
particular sentence pursuant to [Rule 11(c)(1)(C),] . . . the

-- 18 of 21 --

No. 04-2589 19
court has the power—and under the Sentencing Guidelines,
the explicit obligation—to consider whether that sentence
is adequate and to reject the plea agreement if the court
finds it not to be.” Kraus, 137 F.3d at 453 (citing U.S.S.G. §
6B1.2(c); United States v. Crowell, 60 F.3d 199, 204 (5th Cir.
1999); United States v. Skidmore, 998 F.2d 372, 376 (6th
Cir. 1993)).
When a district court rejects a plea agreement, “it must
be able to articulate a sound reason for doing so.” Id.
(quotation omitted). This is to prevent arbitrariness,
discipline the exercise of discretion, and facilitate review.
Id. This court held in Kraus that when a district court
rejects a plea agreement, “the court may and, under our
precedent, must explain why it finds the agreement ob-
jectionable.” Id. (emphasis added). Although the court’s
explanation “no doubt will have an effect on any future
negotiations,” it will not be construed as impermissible
participation in plea negotiations in violation of Rule
11(c)(1) “[s]o long as the court speaks in the context of
‘actively evaluating a plea agreement’ . . . and its remarks
are confined to the agreement before it.” Id. (citations
omitted).
Here, Judge Kennelly was presented with a plea agree-
ment that he found unacceptable. He announced two
reasons for rejecting it: 1) although he had no objection
in principle to a § 5K1.1 departure for O’Neill’s sub-
stantial cooperation, the proposed “lock-in” fixing the
sentence at 124 months would unacceptably cabin his
discretion; and 2) the fixed sentence of 124 months might be
too lenient. In my view, this explanation did not make the
judge a participant in plea negotiations in violation of Rule
11(c)(1). Judge Kennelly was required under Kraus to
explain why he was rejecting the agreement, and he did so.
He confined himself to the terms of the agreement before
him and spoke in the context of evaluating that agreement.

-- 19 of 21 --

20 No. 04-2589
O’Neill’s guilty plea was not tainted by impermissible
judicial participation in plea negotiations.
What O’Neill is really complaining about is not the
integrity of his plea but the length of his sentence. The plea
agreement was renegotiated, the new agreement
was accepted by the court, and O’Neill’s sentence of 224
months is within the sentence range called for by that
agreement, although at the very top of the stipulated range.
O’Neill now argues that because his 224-month sentence
was at the bottom of the otherwise applicable guidelines
range, he did not get a § 5K1.1 departure after all. That the
sentence did not actually “depart” from the otherwise
applicable range makes no difference here because O’Neill
agreed to it, albeit as an outer limit to the judge’s discre-
tion.
As Judge Posner notes, the usual remedy for imper-
missible judicial participation in plea negotiations is to
set aside the plea, on the theory that judicial participa-
tion categorically undermines the plea’s voluntariness.
See Kraus, 137 F.3d at 458. O’Neill did not seek to with-
draw his plea or otherwise object to Judge Kennelly’s
comments in the district court, so he is here on plain error
review. Although he is claiming a Rule 11(c)(1) violation, he
has not asked us to vacate his plea and conviction. He just
wants to be resentenced. But there must be an error for us
to grant relief, and there is no sentencing error here apart
from the mandatory application of the sentencing guidelines
contrary to the remedial opinion in United States v. Booker,
543 U.S. 220 (2005). The Booker error calls for a limited
remand under United States v. Paladino, 401 F.3d 471 (7th
Cir. 2005). However, because O’Neill’s sentence is within
the range stipulated by the plea agreement and the district
court did not impermissibly participate in plea negotiations,
neither resentencing nor plea withdrawal is warranted.
Accordingly, I respectfully dissent.

-- 20 of 21 --

No. 04-2589 21
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-10-06

-- 21 of 21 --