United States of America v. Charles McGee

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 2, 2023*
Decided November 6, 2023
Before
FRANK H. EASTERBROOK, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
DORIS L. PRYOR, Circuit Judge
No. 23-1902
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CHARLES MCGEE,
Defendant-Appellant.
Appeal from the United States District
Court for the Southern District of
Illinois.
No. 21-cr-30034-DWD
David W. Dugan,
Judge.
O R D E R
Charles McGee, who is serving a sentence for drug distribution, appeals the
denial of his motion for relief under the First Step Act of 2018. But because his plea
agreement precludes any challenge to his sentence, we dismiss the appeal.
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. F ED. R. A PP . P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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No. 23-1902 Page 2
McGee pleaded guilty to distributing cocaine base, 21 U.S.C. § 841, and
possessing a gun while trafficking drugs, 18 U.S.C. § 924(c). His plea agreement
contained a broad appellate waiver. The district court selected a 120-month sentence,
the combined statutory minimum.
Six months later, McGee moved under § 404(b) of the First Step Act to reduce his
sentence. He first argued that the First Step Act reduced the sentencing disparity
between cocaine and cocaine base. See First Step Act of 2018, Pub. L. 115-391, § 404(b),
132 Stat. 5194, 5222 (2018). Second, he argued that the pending EQUAL (Eliminating a
Quantifiably Unjust Application of the Law) Act would further reduce the cocaine
sentencing disparity. See H.R. 1693, 117th Cong. (2021).
Without inviting the government’s response, the district court denied the motion.
The court determined that McGee already had benefited from sentencing changes in the
First Step Act because he was sentenced after its enactment. Further, to the extent
McGee sought compassionate release under 18 U.S.C. § 3582(c), potential sentencing
changes in the proposed EQUAL Act did not amount to extraordinary and compelling
reasons for shortening his sentence because unenacted legislation is not binding law.
On appeal, McGee maintains that a sentence reduction is warranted by the
amendments in the First Step Act and the proposed EQUAL Act. The government
invokes language from McGee’s plea agreement, in which he “waives his right to seek
modification of . . . the sentence in any type of proceeding.”
We agree with the government that the waiver is enforceable. We note that there
is disagreement among the circuits on whether the government forfeits its right to
enforce an appeal waiver if it does not object in the district court. See United States v.
Guzman, 926 F.3d 991, 999 (8th Cir. 2019) (citing cases). But the government here had
good reason for not earlier raising the argument—the district court denied McGee’s
motion before the government had an opportunity to respond. See United States v.
Williams, 62 F.4th 391, 393 (7th Cir. 2023) (government entitled to raise exhaustion
defense for first time on appeal because district court summarily denied prisoner’s
application under 18 U.S.C. § 3582(c)). And we will enforce an appeal waiver that—as
here—is knowing and voluntary and whose terms are express and unambiguous.
See United States v. Bridgewater, 995 F.3d 591, 595–96 (7th Cir. 2021) (enforcing
compassionate-release waiver under the First Step Act). Though McGee asserts that
enforcing the waiver would be unjust, nothing about it is unconscionable: he benefited
when the government dropped two of the charges against him. See id. at 596.

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No. 23-1902 Page 3
Therefore, we DISMISS the appeal.

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