ELR Citation: ELR 20617
No(s). 93-3327 (7th Cir. Feb 1, 1995)

The court holds that two defendants convicted of storing hazardous waste without a permit in violation of §3008(d)(2) of the Resource Conservation and Recovery Act and of operating a waste-water treatment facility in violation of §§307(d) and 309(c)(4) of the Federal Water Pollution Control Act validly waived their right to appeal their sentences in their respective plea agreements. The court holds that the transcript of the guilty plea hearing clearly reveals that the defendants knowingly, voluntarily, and intelligently waived their right to appeal. The court further holds that the transcript could not be more clear in reflecting that the trial court conducted the hearing in full accordance with Fed. R. Crim. P. 11. Moreover, the sentences did not exceed the statutory maximum, nor is there any evidence that the trial court relied on a constitutionally impermissible factor. The court also notes that the defendants were educated, experienced in the business world, and represented by highly qualified counsel, making it all the more evident that their respective waivers of their individual right to appeal were knowingly and voluntarily given. The court holds that the waivers of the right to appeal were clear and unequivocal. Although the court holds that it has jurisdiction to determine the merits of the appeal, it declines to exercise jurisdiction and dismisses the appeal.

A dissenting judge would hear the merits of the appeal because the government does not assert the defendants' waivers, and thus waives its right to rely on them.

Counsel for Plaintiff
Jerald Brost, Ass't U.S. Attorney
U.S. Attorney's Office
Federal Bldg.
100 NE Monroe St., Rm. 216, Peoria IL 61602
(309) 671-7050

Counsel for Defendants
Brian Witus
Pugh, Jones & Johnson
180 N. La Salle St., Ste. 2910, Chicago IL 60601
(312) 551-1002

Before POSNER, Chief Judge, and COFFEY and RIPPLE, Circuit Judges.