On Remand from the Supreme Court of the United States.
The opinion of the court was delivered by: Easterbrook, Chief Judge.
SUBMITTED AUGUST 15, 2008
Before EASTERBROOK, Chief Judge, and BAUER and COFFEY, Circuit Judges.
Last year we held that by surrendering, as part of a plea bargain, his opportunity to wage a collateral attack on his conviction, Armando Nunez had waived any right to relief based on the theory that his lawyer should have filed a notice of appeal in violation of the plea agreement (which waived the right to appeal as well as the right to pursue collateral relief). The agreement preserved an opportunity to contest the voluntariness of the plea. After concluding that the plea was voluntary, we enforced the waiver and held that Nunez is not entitled to collateral relief. 495 F.3d 544 (7th Cir. 2007).
After Nunez filed a petition for a writ of certiorari, the Solicitor General told the Justices that the waiver did not necessarily foreclose all of the arguments that Nunez had tried to raise on collateral review. At the Solicitor General's request, the Court remanded for further consideration of that subject. 128 S.Ct. 2990 (2008). The Chief Justice, Justice Scalia, and Justice Thomas dissented from that order, which they deemed improvident because the Solicitor General had not confessed error on this court's judgment but had just expressed reservations about part of the opinion's exposition.
In papers filed on remand, however, the United States Attorney has made the confession of error that the Solicitor General did not. The United States Attorney asserts that the waiver in the plea bargain does not cover the sort of argument that Nunez seeks to present and adds that a defendant has a constitutional right to have a lawyer file a notice of appeal on his behalf even after formally waiving that right. We accept the first part of the United States Attorney's current position but not the second.
The plea bargain between Nunez and the United States waives the right to appeal. It also waives collateral review of the sentence and the manner in which it was deter- mined. That reference to the "sentence" could mean just the length of imprisonment (leaving the conviction open to collateral challenge), but in a criminal case the sentence is the judgment, Berman v. United States, 302 U.S. 211, 212 (1937), so this waiver might well cover all issues. We gave the waiver the broader reading for several reasons.
First, it would be anomalous to plead guilty and waive appeal, yet reserve by indirection a right to test the conviction later. Collateral review is not a means to undo an express waiver of an issue-that much was established even before Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992), overruled Fay v. Noia, 372 U.S. 391 (1963)-and both the guilty plea and the waiver of appeal expressly surrender any right to upset the conviction. See, e.g., United States v. Broce, 488 U.S. 563 (1989). Having twice waived any objection to the conviction, it was not necessary for Nunez to waive it a third time when dealing with collateral review. Second, the waiver of collateral review contains a proviso-the reservation of a right to contest the voluntariness of the plea-that serves a function only if the waiver has the broader meaning. Third, when accepting Nunez's plea the district judge was required by Fed. R. Crim. P. 11(b)(1)(N) to state on the record "the terms of any plea-agreement provision waiving" the right to appeal or collateral review. In obtaining Nunez's assent to these terms on the record, the judge stated that the waiver covers every issue other than the voluntariness of the plea. Asked whether he understood this, Nunez replied "yes."
Looking at this subject again on remand, we would be inclined to conclude a second time that the waiver covers the conviction-but its scope no longer matters. For the United States, as the waiver's beneficiary, may freely give up its protection. And it has done so. The United States has urged us to reach the merits of Nunez's collateral attack. The Supreme Court's remand order directs us to consider "the position asserted by the Solicitor General in his brief for the United States filed May 12, 2008." As we have explained, the position taken in this court on remand differs from that of the Solicitor General; the United States Attorney has confessed error, as the Solicitor General did not. But we do not think that the Court's language prevents the United States from formally surrendering the benefit of the waiver. Now that it has done so, we turn to the substantive issues.
Two caveats. First, our prior opinion considers, and rejects on the merits, Nunez's argument that the plea was involuntary. 495 F.3d at 546. That subject is not within the scope of the remand. Second, a litigant's confession of error on a question of law does not bind the court. See Young v. United States, 315 U.S. 257, 258--59 (1942) ("The considered judgment of the law enforcement officers that reversible error has been committed is entitled to great weight, but our judicial obligations compel us to examine independently the errors confessed."); Ren v. Gonzales, 440 F.3d 446 (7th Cir. 2006). Any litigant is entitled to give up a contractual benefit; that's why we have accepted the prosecutor's current position on the scope of Nunez's waiver. And the United States could dismiss the charges against Nunez. See Rinaldi v. United States, 434 U.S. 22 (1977); In re United States, 345 F.3d 450 (7th Cir. 2003). But the Department of Justice does not propose to set Nunez free; it wants the conviction to stand, though after a hearing to explore the question whether Nunez asked his lawyer to appeal. Whether such a hearing is necessary is a question of law, on which the prosecutor's view is not conclusive. We will reverse the judgment of the district court, and direct it to hold such a hearing, only if the district court erred by holding that a request to his lawyer would not entitle Nunez to relief.
We do not think that the judgment is in error. Instead of sending readers to our first opinion, we will repeat much of what was said there. Recapitulation is better than leaving our reasoning scattered across volumes of the Federal Reporter.
Charged with multiple cocaine offenses, Armando Nunez negotiated a plea bargain: the prosecutor dismissed all counts but one and recommended a sentence at the lowest point in the Guideline range. As part of the deal, Nunez agreed not to appeal unless the sentence exceeded the statutory maximum or the waiver clause itself should be deemed invalid. The sentence of 135 months is well under the maximum. (Nunez admitted distributing more than five kilograms of cocaine, so the judge could have sentenced him to life in prison. See 21 U.S.C. §841(b)(1)(A). Nunez's actual sentence was close to the statutory floor of 120 months.) Nonetheless, Nunez told his lawyer to appeal ...