United States of America v. Linda Nulf

Chicago, IL - Criminal defense lawyer represented defendant with three felony charges: two counts of bank fraud and one count of making a false statement to a financial institution charges.

Linda Nulf worked as a licensed loan originator in

Illinois. For approximately three years, she and two codefendants participated in a mortgage-fraud scheme in which

they submitted loan applications containing false information about the applicant's income and assets. Nulf pre-

No. 19-3137 3

pared and submitted the fraudulent paperwork to financial

institutions and the Department of Housing and Urban

Development ("HUD”), causing approximately $2.2 million

in losses.

A grand jury indicted Nulf on three felony charges: two

counts of bank fraud in violation of 18 U.S.C. § 1344 and one

count of making a false statement to a financial institution in

violation of 18 U.S.C. § 1014. Each of these crimes carries a

30-year maximum prison term. The government later filed a

superseding information charging Nulf with a single count

of making a false statement to HUD, a misdemeanor punishable by up to one year in prison. 18 U.S.C. § 1012.

Nulf pleaded guilty to the misdemeanor pursuant to a

written agreement in which the government agreed to

dismiss the original felony charges. The parties further

stipulated that the anticipated offense level was 23, which

when combined with Nulf's nonexistent criminal history

would result in the one-year statutory maximum as the

recommended sentence under the Sentencing Guidelines.

The plea agreement also included an appeal waiver:

[D]efendant 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 maximums provided by

law, and including any order of restitution, in

exchange for the concessions made by the

United States in this Agreement.

4 No. 19-3137

The judge confirmed Nulf's understanding of the appeal

waiver at the change-of-plea hearing. As anticipated, the

presentence report ("PSR”) recommended an offense level of

23, which included a 3-level reduction for acceptance of

responsibility, and a criminal-history category of I. These

calculations yielded an advisory Guidelines range of 46–

57 months in prison, but the sentence was capped at the

statutory maximum of 12 months. Nulf's only objection to

the PSR concerned a recommended condition permitting a

probation officer to visit her at work during supervised

release.

Sentencing proceeded uneventfully until Nulf's allocution. She explained at length that the criminal case had been

financially and personally devastating for her and her family

and expressed a desire to be "a good person.” Eventually the

judge interjected, leading to the following exchange:

THE COURT: It seems to me that you have yet

to acknowledge what you did.

THE DEFENDANT: I have acknowledged.

THE COURT: What did you do?

THE DEFENDANT: I didn't pay attention to

what was going on and allowed—I was very

sloppy about what went in, didn't pay attention, and incorrect information went in, and

that is my responsibility.

THE COURT: What did you do?

THE DEFENDANT: I did not pay attention on

the loan applications and so there was incorrect information on the loan applications that

No. 19-3137 5

were processed and closed. That is my responsibility.

Based on these responses, the judge determined that Nulf

had not really accepted responsibility for her crime and

removed the 3-level reduction for acceptance of responsibility from the Guidelines calculation. The new offense level

was 26, increasing the advisory Sentencing Guidelines range

to 63–78 months. This was all academic, of course; the

sentence was limited by the one-year statutory maximum.

The judge imposed the one-year sentence as contemplated

by the plea agreement.

II. Discussion

Nulf asks us to ignore her appeal waiver because the

judge interfered with her right of allocution and wrongly

deprived her of credit for accepting responsibility. She also

seeks review of several other claimed errors at sentencing.

But this case does not fit within the narrow set of circumstances in which we've recognized an equitable exception to

an otherwise enforceable appeal waiver.

As a general matter, an appeal waiver must be enforced

if its "terms are express and unambiguous, and the record

shows that the defendant knowingly and voluntarily entered

into the [plea] agreement.” United States v. Haslam, 833 F.3d

840, 844 (7th Cir. 2016) (alteration in original) (quotation

marks omitted). In other words, an appeal waiver stands or

falls with the underlying agreement and plea. If the agreement and guilty plea are valid, so too is the appeal waiver.

Id. We have declined to enforce an otherwise valid appeal

waiver only in a few limited circumstances—for example,

"when the sentence exceeds the statutory maximum, when

6 No. 19-3137

the plea or court relies on a constitutionally impermissible

factor like race, or when counsel is ineffective in the negotiation of the plea agreement.” Dowell v. United States, 694 F.3d

898, 902 (7th Cir. 2012).

Nulf concedes that her appeal waiver was express and

unambiguous, and that she knowingly and voluntarily

entered into it. She does not challenge the validity of her

guilty plea. That is the end of the matter. The waiver must be

enforced unless one of the narrow exceptions applies, and

Nulf does not argue—nor could she—that her case falls

within any of the exceptions we've just listed. She argues

instead that our decision in Litos recognized a general "miscarriage of justice” exception and that her case qualifies

under it.

This argument misreads Litos. That case involved a bankfraud scheme by three coconspirators. Two were found

guilty by a jury, but the third, Minas Litos, pleaded guilty

and waived his right to appeal. 847 F.3d at 910. The three

defendants appealed, challenging (among other things) the

judge's imposition of approximately $900,000 in restitution,

for which the three were jointly and severally liable. We

agreed that the restitution order could not stand because the

victim, a large bank, had been reckless and therefore did

"not have clean hands.” Id. at 907–08. That ruling, of course,

lifted the restitution obligation from the defendants who

were convicted at trial. But because Litos pleaded guilty and

waived his right to appeal, he remained on the hook and

solely responsible for the entire amount. Id. at 910. In that

unusual situation, we declined to enforce the appeal waiver

and relieved Litos of his obligation to pay under the invalid

restitution order. Id. at 910–11.

No. 19-3137 7

Along the way to that holding, we noted that some circuits decline to enforce appeal waivers if doing so would

result in a "miscarriage of justice.” Id. at 910. But we did not

adopt a general miscarriage-of-justice exception for this

circuit. To the contrary, we reiterated our circuit's longstanding recognition of only a limited set of

exceptional situations in which waiver does

not foreclose appellate review—for example[,]

if an appeal waiver is part of a plea agreement

that was involuntary, or if the district court relied on a constitutionally impermissible factor,

or if the defendant received ineffective assistance of counsel in regard to the negotiation of

the plea agreement, or if the sentence exceeded

the statutory maximum.

Id. And we emphasized that these exceptions "are narrow.”

Id. at 911.

In short, Litos addressed a unique situation and did not

announce a new and amorphous miscarriage-of-justice

standard for setting aside an otherwise enforceable appeal

waiver. See Oliver v. United States, 951 F.3d 841, 847 (7th Cir.

2020) (explaining the limits of Litos); United States v. Carson,

855 F.3d 828, 831 (7th Cir. 2017) (same).

Because Nulf’s appeal waiver is valid and enforceable, this appeal is DISMISSED

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