United States of America v. Joshua N. Emerson

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-1622
U NITED S TATES OF A MERICA ,
Plaintiff-Appellee,
v.
J OSHUA N. E MERSON ,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 01 CR 30023—David R. Herndon, Judge.
____________
A RGUED S EPTEMBER 26, 2003— N OVEMBER 18, 2003
____________
Before F LAUM , Chief Judge, and B AUER and M ANION ,
Circuit Judges.
B AUER , Circuit Judge. In March 2001, Emerson was
charged with being a felon in possession of a firearm. In
May of that year he entered into a cooperative plea agree-
ment whereby he agreed to provide the government with
any information he might have concerning other criminal
activity. In exchange the government agreed to consider
filing a motion to reduce his sentence pursuant to Federal
Rule of Criminal Procedure 35(b). After Emerson gave the
government information, the government decided not to
petition for his sentence reduction. Emerson appeals. We
affirm.

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2 No. 03-1622
1 Federal Rule of Criminal Procedure 35(b) provides that:
Upon government’s motion made within one year of sentenc-
ing, the court may reduce a sentence if:
(A) the defendant, after sentencing, provided substantial as-
sistance in investigating or prosecuting another person; and
(B) reducing the sentence accords with the Sentencing
Commission’s guidelines and policy statements.
I. Background
The government frequently makes cooperating plea
agreements with defendants who they believe have knowl-
edge of criminal activity that would be helpful to the gov-
ernment in further investigations. Normally, under these
agreements, the government receives information from the
prisoner and then makes a determination as to whether the
information given by the prisoner is truthful and helpful. If
the government finds that the information is of “substantial
assistance” it may choose to file the motion under Rule
35(b) to reduce the prisoner’s sentence. 1
In this case, Emerson entered into such a plea agreement.
Among other things, the agreement provided that Emerson
would plead guilty, waive his right to appeal, and would
provide the government with whatever information he had
regarding criminal activity. The agreement also provided
that once Emerson did all these things, the government
would have “sole discretion” as to whether it would file the
Rule 35 motion for a reduction of sentence. (Brief for
Appellee at app. B8.) After Emerson gave the government
information about two drug dealers, the government did not
immediately file a Rule 35 motion; Emerson’s attorney then
contacted the government to let them know that the one
year time limit on filing the motion was approaching. In
response, the government filed a Rule 35 motion to avoid
the upcoming deadline but asked the district court not to

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No. 03-1622 3
rule on it until the government had a chance to assess
whether the information Emerson had provided was indeed
truthful and of substantial assistance. The government
determined that Emerson had not been truthful in his
information and later told Emerson’s attorney that the
information had not been of substantial assistance. The
government then moved to withdraw its Rule 35 motion,
and that motion was granted. Counsel for the defendant
then filed a motion asking the district court to reconsider
allowing the government to withdraw its Rule 35 motion
and requested an evidentiary hearing.
II. Discussion
Emerson fails in his appeal for two reasons: first, he
waived his right to appeal his sentence and second, the
government did not abuse its discretion when it determined
that Emerson did not provide substantial assistance.
A. Waiver
The validity of a waiver agreement is reviewed de novo.
United States v. Jones, 167 F.3d 1142, 1144 (7th Cir. 1999).
Generally, waivers of appeal are enforceable. United States
v. Kratz, 179 F.3d 1039, 1041 (7th Cir. 1999). A waiver is
binding so long as the terms of the waiver are unambiguous
and it was made “knowingly and voluntarily.” Jones, 167
F.3d at 1144 (quoting United States v. Wooley, 123 F.3d 627,
632 (7th Cir. 1997)). In this case, the waiver agreement
Emerson entered into was explicit in the terms of his co-
operative plea agreement. Specifically, Section II, Para-
graph eleven of the agreement states,
[T]he Defendant knowingly and voluntarily waives the
right to appeal any sentence . . . (or the manner in
which that sentence was determined) on the grounds

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4 No. 03-1622
set forth in Title 18, United States Code, Section 3742
or on any ground whatever . . . . The Defendant also
waives his right to challenge his sentence or the man-
ner in which it was determined in any collateral attack
. . . .
(Brief for Appellee at app. B8.) Emerson does not contend
that the waiver was non-binding but argues that his specific
appeal is not covered by the waiver. The language of the
waiver is clear; it bars Emerson from appealing his sen-
tence on “any ground whatever.” Such language must
include appeals regarding reductions in sentence for coop-
erating with the government.
B. Governmental Discretion
Even if Emerson had not waived his right to appeal his
sentence, he has no cause to complain. Under the terms of
the agreement, the government retained “sole discretion” as
to whether to file a Rule 35 motion. (Brief for Appellee at
app. B8.) In considering such agreements, the Supreme
Court has upheld the government’s discretion unless the
refusal to file the motion was based on religious or racial
grounds, or if the refusal “was not rationally related to any
legitimate government end.” Wade v. United States, 504
U.S. 181, 185-86 (1992).
Emerson does not argue that the decision was motivated
by improper racial or religious motivations but instead
argues that it was not rationally related to any legitimate
governmental end. Emerson points out that the government
offered inconsistent reasons for its decision not to request
the downward departure when it initially stated that he
had lied, and then later, that he had not provided substan-
tial assistance. Emerson is also miffed at the government’s
slow and seemingly disorganized manner of handling the
motion for downward departure. Although the government

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No. 03-1622 5
could have been more attentive to Emerson’s situation, this
does not meet the high standard necessary to show an
absence of a rational basis. By the nature of the plea
agreement, the government must make a judgment call as
to whether “substantial assistance” has been rendered.
Given the discretion afforded to the government and its
explanation for its decision, it is of little importance that
the government provided differing reasons for not recom-
mending a downward departure. Emerson failed to demon-
strate that the government’s actions were not rationally
related to a legitimate end.
For this reason, we A FFIRM .
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-18-03

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