United States of America v. Korrtel Filzen

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20‐1071
U NITED STATES OF A MERICA ,
Plaintiff‐Appellee,
v.
KORRTEL FILZEN,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 18‐cr‐69 — Richard L. Young, Judge.
____________________
A RGUED D ECEMBER 8, 2020 — D ECIDED MARCH 16, 2021
____________________
Before EASTERBROOK , KANNE , and HAMILTON, Circuit
Judges.
KANNE , Circuit Judge. Korrtel Filzen pled guilty to eleven
felony offenses related to an armed robbery spree. His plea
agreement stipulated that his sentence would consist of 360 to
420 months’ imprisonment and a special assessment of $900,
as required by a statute that mandates a $100 special assess‐
ment per felony count. The somewhat obvious issue is that
$100 per count comes out to $1,100, not $900. And indeed, the

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2 No. 20‐1071
district court sentenced Filzen to pay a special assessment of
$1,100. Although he did not object at the time, Filzen now
challenges his sentence because of that $200 discrepancy.
On plain‐error review, we find that the court’s imposition
of the correct, statutorily mandated special assessment—alt‐
hough it differs by $200 from that in Filzen’s plea agree‐
ment—need not be undone. We affirm.
I. BACKGROUND
From December 2017 to January 2018, Korrtel Filzen
robbed seven Indianapolis auto‐parts stores while brandish‐
ing a firearm. He was caught by law enforcement and then
charged by a grand jury with seven counts of Hobbs Act rob‐
bery, 18 U.S.C. § 1951(a), and two counts of brandishing a fire‐
arm during and in relation to a crime of violence, 18 U.S.C.
§ 924(c)(1)(a)(ii). Filzen initially petitioned to plead guilty to
all nine counts of the indictment. The government later ob‐
tained a superseding indictment that attached a brandishing
count for each robbery.
In September 2019, Filzen entered into a plea agreement
with the government. He agreed to plead guilty to eleven
counts—four of the brandishing counts and all seven of the
Hobbs Act robbery counts. In exchange, the government dis‐
missed three brandishing counts and moved for a three‐level
sentence reduction for acceptance of responsibility.
Pursuant to Federal Rule of Criminal Procedure
11(c)(1)(C), the plea agreement states that, “if the Court ac‐
cepts this plea agreement, the Court will sentence the defend‐
ant within the specific sentencing range set forth in Paragraph
9.” Paragraph 9 contains a sentencing range of 360 to 420
months’ imprisonment and a special assessment of

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No. 20‐1071 3
“$900.00 …, which amount represents the mandatory special
assessment fees imposed pursuant to Title 18, United States
Code, Section 3013.” The agreement also includes an appeal
waiver, which only reserves Filzen’s right to seek review of
“the constitutionality of applying an 18 U.S.C.
§ 924(c)(1)(A)(ii) charge … to armed Hobbs Act Robberies.”
The district court held a combined change‐of‐plea and
sentencing hearing. During the change‐of‐plea portion of the
hearing, the district court reviewed the plea agreement and
discussed with Filzen that “[t]here will be a special manda‐
tory assessment of $100 for each count. The total is $900 pay‐
able to the clerk, United States District Court, Southern Dis‐
trict of Indiana. Is all that your understanding and agree‐
ment?” Filzen responded in the affirmative. The court later
advised Filzen that, “if I choose not to follow the terms of the
plea agreement, that is, the recommended sentencing level
here, I will give you the opportunity to withdraw your plea
of guilty; and if you choose not to withdraw your plea of
guilty, I may impose a more severe sentence without being
bound by the plea agreement.” Filzen responded that he un‐
derstood.
At the sentencing portion of the hearing, the district court
stated that it accepted the plea agreement. The court imposed
a sentence of 360 months’ imprisonment, the low end of the
agreed‐upon range. But the court also ordered that “Defend‐
ant shall pay a mandatory special assessment fee of $100 per
count for a total of $1,100” without acknowledging the $200
discrepancy from the $900 stated in the agreement.
Apparently, no one noticed the mistake. The court did not
inform Filzen or the government that it was rejecting the plea

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4 No. 20‐1071
agreement, nor did it give Filzen the opportunity to withdraw
the plea. Filzen’s counsel did not object.
Filzen now appeals his sentence on the basis of the $200
difference in his special assessment and the fact that the dis‐
trict court did not offer him the opportunity to withdraw his
guilty plea under Rule 11. He requests that we reverse and
remand so that he may make that choice.
II. A NALYSIS
Violations of Rule 11 do not cause “automatic vacaturs.”
United States v. Davila, 569 U.S. 597, 610 (2013). Instead, they
“call[] for across‐the‐board application of the harmless‐error
prescription (or, absent prompt objection, the plain‐error
rule).” Id. Filzen’s counsel did not object at sentencing, so we
review for plain error. United States v. Linder, 530 F.3d 556, 562
(7th Cir. 2008) (citing United States v. Vonn, 535 U.S. 55, 59
(2002)).
On plain‐error review, Filzen must show that “(1) there
was an error, (2) the error is clear and obvious, (3) the error
affected [his] substantial rights, and (4) the error seriously af‐
fects the fairness, integrity, or public reputation of judicial
proceedings.” United States v. Williams, 946 F.3d 968, 971 (7th
Cir. 2020) (citing United States v. Zacahua, 940 F.3d 342, 344
(7th Cir. 2019)).
The first two elements are met here. Federal Rule of Crim‐
inal Procedure 11(c)(1)(C) provides that “a specific sentence”
agreed to under that subsection “binds the court once the
court accepts the plea agreement.” The district court may re‐
ject a Rule 11(c)(1)(C) plea agreement, but it must follow the
Rule 11(c)(5) procedures when it does so. United States v. Lock‐
wood, 416 F.3d 604, 607 (7th Cir. 2005).

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No. 20‐1071 5
Here, the district court effectively rejected the plea agree‐
ment when it failed to impose the specified sentence in its en‐
tirety. Id. (“Rule 11[(c)(1)(C)] does not … allow for piecemeal
acceptance of some portions of the plea agreement, but not
others.”). And by failing to follow the Rule 11(c)(5) proce‐
dures, including “inform[ing] the parties that the court re‐
ject[ed] the plea agreement” and “giv[ing] the defendant the
opportunity to withdraw the plea,” the district court commit‐
ted a clear and obvious error. See United States v. Gibson, 356
F.3d 761, 766 (7th Cir. 2004) (“[B]ecause this error is apparent
from the language of [the statute], the error was ‘plain.’”); see
also United States v. Kemper, 908 F.2d 33, 37 (6th Cir. 1990)
(“[O]nce the district court found grounds for rejecting the plea
agreement, it was error for the court to impose a sentence
without affording defendant Kemper an opportunity to with‐
draw his guilty plea.”).
Whether it constitutes reversible error under the third and
fourth prongs of plain‐error review, however, requires a
closer look at the record. See Davila, 569 U.S. at 611. For the
substantial‐rights prong, the Supreme Court has instructed
that a defendant—like Filzen—ʺwho seeks reversal of his con‐
viction after a guilty plea, on the ground that the district court
committed plain error under Rule 11, must show a reasonable
probability that, but for the error, he would not have entered
the plea.” United States v. Dominguez Benitez, 542 U.S. 74, 83
(2004); accord Williams, 946 F.3d at 973.
Filzen faces an uphill battle to make this showing. True,
the district court imposed a special assessment that was $200
greater than provided in the agreement. But Filzen agreed to
plead guilty on favorable terms that greatly reduced his stat‐
utory and guidelines sentencing exposure. Pursuant to the

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6 No. 20‐1071
plea agreement, the government dismissed three of the
§ 924(c) counts, which reduced Filzen’s mandatory term of
imprisonment from 49 to 28 years and his guidelines range
from 423–444 to 360–420 months. At sentencing, the district
court acknowledged that Filzen’s actual sentence of 360
months’ imprisonment was “a downward variance based on
the terms of the binding plea agreement.”
Nevertheless, we need not decide whether Filzen’s sub‐
stantial rights were affected because, “even if they were, we
would not exercise our discretion to correct this error under
the fourth element.” United States v. Pulliam, 973 F.3d 775, 781
(7th Cir. 2020).
To start, Filzen received a lawful sentence. Indeed, under
18 U.S.C. § 3013(a)(2)(A), the district court was required to as‐
sess $100 per felony count. See United States v. Austin, 907 F.3d
995, 998 (7th Cir. 2018); United States v. Nguyen, 916 F.2d 1016,
1020 (5th Cir. 1990) (“[T]he imposition of special assessments
under section 3013 is mandatory.” (citing United States v.
Munoz‐Flores, 495 U.S. 385, (1990))). Filzen’s agreed‐to $900 as‐
sessment thus fell short for his eleven felony counts of convic‐
tion. The math isn’t disputed: $100 x 11 = $1,100, not $900. And
“[e]ven when a defendant, prosecutor, and court agree on a
sentence, the court cannot give the sentence effect if it is not
authorized by law.” Gibson, 356 F.3d at 766 (alteration in orig‐
inal) (quoting United States v. Greatwalker, 285 F.3d 727, 730
(8th Cir. 2002)). So while “the entry of an illegal sentence is a
serious error routinely corrected on plain‐error review,”
United States v. Pawlinski, 374 F.3d 536, 541 (7th Cir. 2004), the
district court’s alteration here corrected a legal error in the plea
agreement. In light of that, we do not think that it seriously

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No. 20‐1071 7
affected the fairness, integrity or public reputation of the ju‐
dicial proceedings.
Moreover, although we often reverse an error that in‐
creased a defendant’s term of imprisonment because “[t]he
risk of unnecessary deprivation of liberty particularly under‐
mines the fairness, integrity, or public reputation of judicial
proceedings” in certain cases, Rosales‐Mireles v. United States,
138 S. Ct. 1897, 1908 (2018), the same cannot be said for this
error. We do not agree with Filzen that the district court’s $200
variance that brought the sentence in line with the statute had
any such effect on the proceedings. “[W]e have stated that we
will overturn a criminal conviction under this standard only
when ‘necessary to avoid a miscarriage of justice.’” Gibson,
356 F.3d at 766 (quoting United States v. Raney, 342 F.3d 551,
559 (7th Cir. 2003)); see also Pulliam, 973 F.3d at 781. There is
no miscarriage of justice in allowing Filzen’s conviction to
stand in light of his lawful sentence. 1
III. CONCLUSION
The district court could not have lawfully imposed a $900
special assessment, and the lawful sentence that it did impose
did not seriously affect the fairness, integrity or public repu‐
tation of judicial proceedings. Although the Rule 11 violation
was clearly an error, it is not a reversible one. We AFFIRM.
1 Although the government argues that the plea agreement’s appeal
waiver should bar this appeal, we need not decide on that ground because
we find no reversible error.

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