The opinion of the court was delivered by: James F. Holderman, Chief Judge
MEMORANDUM OPINION AND ORDER
On January 4, 2006, defendant James Monti was charged in a five-count indictment which alleged that in 1999, he engaged in a scheme to defraud Cole Taylor Bank in violation of 18 U.S.C. § 1344 and made false statements in violation of 18 U.S.C. § 1014.
After a substantial period of plea negotiations and some delays to address defendant Monti's health issues, the government and defendant Monti finalized a written plea agreement dated November 14, 2006 [Dkt. No. 30]. Pursuant to that plea agreement, defendant Monti pleaded guilty to Count One of the indictment on November 14, 2006 and the government, among other things, agreed to dismiss the remaining counts of the indictment at the time of defendant Monti's sentencing, which is currently set for March 28, 2007 [Dkt. No. 25].
Pursuant to Federal Rule of Criminal Procedure 11 (c)(1)(B)*fn1, in the written plea agreement, the parties agreed to certain sentencing guideline points using "the November 1998 edition of the guidelines" [Dkt. No. 30 at 5]. On November 14, 2006, the Assistant United States Attorney handling the case for the government confirmed in open court the government's recommendation pursuant to the plea agreement that the 1998 Sentencing Guidelines should be used by the court in considering the appropriate Guidelines range of imprisonment when sentencing defendant Monti.
At the conclusion of the requisite guilty plea colloquy, this court on November 14, 2006 accepted defendant Monti's plea. Two days later, on November 16, 2006, the government filed a motion entitled "Motion to Correct Plea Agreement" [Dkt. No. 23] in which the government asserted the plea agreement "had been negotiated several months ago. In the plea agreement, the parties calculated defendant's offense level and Guidelines range using the 1998 version of the Guidelines." (Gov't. Mo. at 1). The Government further asserted in its "Motion to Correct Plea Agreement" that:
The government, however, believes that it is required to follow the Seventh Circuit's directive in United States v. Demaree, [459 F.3d 791 (7th Cir. 2006)], to advocate the application of the version of the Guidelines in effect at the time of sentencing.
The Seventh Circuit's Demaree opinion had been issued on August 11, 2006, over three months before the November 14, 2006 plea agreement in this case was finalized. In light of the government's November 16, 2006 post-plea "Motion to Correct Plea Agreement," retracting agreed terms of the November 14, 2006 plea agreement and retreating from the government's pre-plea position stated in open court acknowledging the government's agreement to recommend that the court use the 1998 Guidelines, the court issued an order on November 17, 2006 requesting a response by December 1, 2006 from the defendant. Because no response was filed by the defendant, the court requested a status conference to be held on February 8, 2007. On that day, the parties filed a document entitled "Correction to Plea Agreement" which stated as to paragraph 6(a):
The government believes that the Guidelines in effect at the time of defendant's sentencing, that is, the November 2006 edition of the Guidelines are the applicable Guidelines to defendant's offense. The defendant believes that the November 1998 edition of the Guidelines are the applicable Guidelines to defendant's offense. [Dkt. No. 31 at 1].
As quoted in footnote 1, Federal Rule of Criminal Procedure 11(c)(1)(B) is clear that when the government and a defendant enter into a negotiated plea agreement, the government may agree to recommend to a sentencing judge that a particular sentence, sentencing range, provision of the Sentencing Guidelines, policy statement, or sentencing factor should or should not be applied in a particular defendant's case. After accepting a defendant's guilty plea pursuant to the plea agreement, a sentencing court is not bound to follow any recommendation made pursuant to Rule 11(c)(1)(B).
Federal Rule of Criminal Procedure 11(c)(1)(C) allows the government and a defendant by their plea agreement to bind a sentencing court, upon acceptance of the guilty plea, to sentence the defendant as the parties agreed. In that situation, if the court does not agree to sentence the defendant as specified in a Rule 11(c)(1)(C) plea agreement, the court must reject the parties' agreement and allow the parties to negotiate another plea agreement or seek other means to resolve the case. The Seventh Circuit law is clear that: "Plea agreements [under Rule 11(c)(1)(C)] can retain their authority to bind the government, the defendant and the district court even when they provide for sentences that depart from the prescriptions of the guidelines." United States v. Cielowski, 410 F.2d 353, 363 (7th Cir. 2005) (citing prior opinions from the Second, Third, Sixth, Seventh and District of Columbia Circuits that have reached the same conclusion).
This court, having been presented with a Rule 11(c)(1)(B) plea agreement in this case is, of course, not bound by that plea agreement to impose a particular sentence or apply particular provisions of the sentencing guidelines.*fn2 Even though this court under this Rule 11(c)(1)(B) plea agreement is not bound upon the court's acceptance of defendant Monti's guilty plea to follow the parties' agreed-upon recommendation, it has long been the law in the Seventh Circuit and across the country that the parties to a plea agreement are required to live up to the plea agreement's terms. Plea agreements are contracts. Hartjes v. Endicott, 456 F.3d 786, 790 (7th Cir. 2006); United States v. Salazar, 453 F.3d 911, 913 (7th Cir. 2006). The government and the defendant must fulfill the agreement that was expressly or impliedly made between them. United States v. Atkinson, 259 F.3d 648, 654 (7th Cir. 2001); United States v. Schilling, 142 F.3d 388, 394-95 (7th Cir. 1998). It has also long been the law that the government may not "pull the rug out from under a defendant who had negotiated a plea agreement, by taking steps to induce the judge to give a higher sentence." United States v. Hauptman, 111 F.3d 48, 51 (7th Cir. 1997).
"Pull[ing] the rug out from under the defendant" is precisely what the government has attempted to do here by inducing defendant Monti to plead guilty pursuant to the November 14, 2006 plea agreement and then seeking to change the plea agreement's terms after that guilty plea. The government's position stated in its "Motion to Correct Plea Agreement" that "the government believes it is required to follow the Seventh Circuit's directive in United States v. Demaree to advocate the application of the version of the Guidelines in effect at the time of ...