US v. Harold Roque, No. 11-4974 (4th Cir. 2012)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4974 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. HAROLD GONZALEZ ROQUE, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Max O. Cogburn, Jr., District Judge. (3:09-cr-00177-MOC-2) Submitted: September 28, 2012 Decided: November 26, 2012 Before NIEMEYER, DIAZ, and FLOYD, Circuit Judges. Dismissed by unpublished per curiam opinion. Denzil H. Forrester, Charlotte, North Carolina, for Appellant. Anne M. Tompkins, United States Attorney, Melissa L. Rikard, Assistant United States Attorney, Charlotte, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Harold Gonzalez Roque pled guilty pursuant to a plea agreement to one count of conspiracy to defraud the Government by filing false claims, 18 U.S.C. § 286 (2006) (Count One), and conspiracy to defraud the United States, 18 U.S.C. § 371 (Count Two). (2006) The Government moved for a downward departure under U.S. Sentencing Guidelines Manual ( USSG ) § 5K1.1 (2010) based on Roque s substantial assistance, and Roque ultimately received a challenge 72-month the restitution, sentence. sentencing alleging On appeal, court s the Roque seeks calculation Government to regarding breached the plea agreement by referring to a money judgment entered into by the parties where none existed. statement was made in The Government concedes that the error, but argues constitute a breach or prejudice Roque. the error did not The Government further contends that because Roque agreed to waive his right to appeal his sentence, this appeal should be dismissed. Roque counters that the Government s alleged breach voids his appellate waiver. Because we conclude that the Government did not breach the plea agreement and that the appeal waiver should be enforced, we dismiss the appeal. Roque parties agreed entered into a plea pursuant to Fed. R. agreement Crim. P. in which 11(c)(1)(B) the to jointly recommend to the court: (1) the amount of loss known to 2 or reasonably foreseeable to Roque was more than seven million dollars, but less than twenty million dollars, corresponding to a twenty-level enhancement under USSG § 2B1.1(b)(1)(K); (2) the loss under USSG § 2B1.1(b) may be different from, greater than, or less than restitution under 18 U.S.C. § 3556 (2006); and (3) Roque s adjusted offense level is thirty-four. With respect to restitution, the plea agreement provided: The defendant agrees to . . . pay full restitution, regardless of the resulting loss amount, to all victims directly or indirectly harmed by the defendant s relevant conduct. . . . The defendant understands that such restitution will be included in the Court s Order of Judgment and an unanticipated amount of a restitution order will not serve as grounds to withdraw the defendant s guilty plea. Roque agreed to waive all rights to notice of forfeiture under Fed. R. Crim. P. 32.2. right (1) to contest Additionally, he agreed to waive his the conviction except for claims of ineffective assistance of counsel or prosecutorial misconduct, and (2) to appeal whatever sentence was imposed with the two exceptions set forth in (1). At sentencing, the district court affirmed the magistrate judge s findings that Roque s plea was knowingly and voluntarily made, and that he understood the charges and the consequences of his plea. The parties stipulated to the factual basis as set forth in the presentence report ( PSR ). party objected to the PSR. When 3 the district Neither court asked whether there was any criminal forfeiture in this case to be considered as part of the judgment, the Assistant United States Attorney responded: Your Honor, we did I think execute a money judgment. We d ask the Court to just orally pronounce that. I think it s been executed by the parties and it s been filed. Defense counsel stated he had no objections to that motion. The court further ordered Roque to make restitution to the Internal Revenue Service in the amount of $12,342,117, as calculated in the PSR, noting that Roque was jointly and severally liable for the total amount of restitution with his co-conspirators. Based statement, agreement on the the court between Assistant noted the there parties restitution in this case. United was for States a the Attorney s consent total judgment amount of The court recognized the judgment, ordered that it become a part of the record, stated that it would be signed by the court, and made the judgment a part of the sentence. On The defense again did not object. appeal, Roque maintains that the Government breached the plea agreement at sentencing by proclaiming the existence of a consent judgment that did not exist. This statement, according to Roque, violated the plea agreement as it altered a material term of the plea document, i.e., restitution, and therefore voids his waiver of his right to appeal. He seeks to argue on appeal that his sentence in unreasonable because the 4 district court abused its discretion in ordering a restitution amount of $12.3 million dollars, based on a non-existent the Government s agreement. Because Roque did not object to statement as a breach of the plea agreement, this court s review is for plain error. Puckett v. United States, 556 U.S. 129, 133 36 (2009); United States v. McQueen, 108 F.3d 64, 65 66 & n. 1 (4th Cir. 1997) (citing United States v. Fant, 974 F.2d 559, 565 (4th Cir. 1992)). It is settled that a defendant alleging the Government s breach of a plea agreement bears the burden of establishing that breach by a preponderance of the evidence. United States v. Snow, 234 F.3d 187, 189 (4th Cir. 2000). plain error agreement review, was Roque breached, must but show also not that only the that breach Under the plea was so obvious and substantial that failure to notice and correct it affect[ed] the fairness, integrity or public reputation of the judicial proceedings. McQueen, 108 F.3d at 66 & n. 4 (quoting Fant, 974 F.2d at 565). The Government concedes that there is no record of a money judgment counters that agreement Roque signed fails to by the parties; demonstrate the however, it Government s mistaken assertion was contrary to any promise the Government made in the plea agreement or that Roque was prejudiced by the statement. When a plea agreement 5 rests on an agreement or promise that can be said to be part of the consideration, the promise must be fulfilled. Dawson, 587 F.3d 640, 645 (4th Cir. 2009). inducement or United States v. On the other hand, no party is obligated to do more than what is specified in the plea agreement itself. Id. Under Fed. R. Crim. P. 32(b)(1)(A), which pertains to forfeitures, [i]f the Government seeks a personal money judgment, the court must determine the amount of money that the defendant will be ordered to pay. The Government correctly notes obligations that agreement it made with judgment. no promises respect to or whether it would in the plea a money seek Therefore, Roque cannot establish the Government s statement, albeit mistaken, constituted a breach of the plea agreement. Assuming constituted a arguendo breach, that that the Government s statement, contrary statement to Roque s assertion, did not affect the ultimate order of restitution and, therefore, no prejudice resulted. officer specifically In the PSR, the probation calculated a restitution $12,342,117, the same amount ordered by the court. Crim. P. 32(c)(1)(B) investigation court). no and (directing submit report amount of See Fed. R. probation officer to regarding restitution conduct to the When given an opportunity at sentencing, Roque lodged objections to the probation 6 officer s calculation of restitution in the PSR. Moreover, Roque does not assert that there has been any forfeiture of his assets in reliance on the non-existent money judgment. We conclude there was no error, much less plain error, because the Government did not breach the plea agreement. The Government seeks agreement s appeal waiver. right to appeal if enforcement of the plea A criminal defendant may waive the that waiver is knowing and intelligent. United States v. Poindexter, 492 F.3d 263, 270 (4th Cir. 2007). Generally, if the district court fully questions a defendant regarding the waiver of his right to appeal during a plea colloquy performed in accordance with Rule 11, the waiver is both valid and enforceable. United States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005). Whether a defendant validly waived his right to appeal is a question of law this court reviews de novo. United States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005). Where the Government seeks to enforce an appeal waiver and there is no substantiated claim that the Government breached its obligations enforce the under waiver if the plea agreement, the record this establishes court that (1) will the defendant knowingly and intelligently agreed to waive the right to appeal, and (2) the issue being appealed is within the scope of the waiver. Id. at 168 & n. 5. 7 Roque waived his right to appeal his sentence except based on claims of ineffective prosecutorial misconduct. assistance of counsel and This portion of the plea agreement was reviewed at the Rule 11 hearing and Roque acknowledged that he agreed to the provision. On appeal, Roque argues that the appeal waiver is not enforceable because the Government breached the plea agreement.ï ª Because the Government did not breach the plea agreement and Roque does not raise an issue outside the scope of the agreement, the appeal waiver will be enforced. Accordingly, we dismiss the appeal. oral argument adequately because presented in the facts the and materials legal before We dispense with contentions the court are and argument would not aid the decisional process. DISMISSED ï ª He does voluntary. not argue that 8 his plea was not knowing or
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