US v. James Bailey, Jr., No. 13-4185 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4185 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JAMES W. BAILEY, JR., a/k/a James W. Bill Bailey, Jr., Defendant - Appellant. No. 13-4342 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JAMES W. BAILEY, JR., a/k/a James W. Bill Bailey, Jr., Defendant - Appellant. Appeals from the United States District Court for the Western District of North Carolina, at Asheville. Martin K. Reidinger, District Judge. (1:11-cr-00010-MR-DLH-1) Submitted: November 26, 2013 Decided: Before NIEMEYER, WYNN, and DIAZ, Circuit Judges. December 23, 2013 Affirmed by unpublished per curiam opinion. Mark R. Sigmon, GRAEBE HANNA & SULLIVAN, PLLC, Raleigh, North Carolina, for Appellant. Anne M. Tompkins, United States Attorney, Amy E. Ray, Richard Edwards, Assistant United States Attorneys, Asheville, North Carolina; Mythili Raman, Acting Assistant Attorney General, Denis J. McInerney, Acting Deputy Assistant Attorney General, Richard A. Friedman, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: James W. Bailey, Jr., appeals the 384-month sentence imposed by the district court. Bailey pled guilty, pursuant to a written plea agreement, to securities fraud, mail fraud, and filing parties a false tax approached agreement. The return. the After district district Bailey court court pled guilty, both a corrected plea the corrected plea with accepted agreement after a comprehensive hearing by a magistrate judge pursuant to Fed. R. Crim. P. 11. On appeal, Bailey contends that the district court erred when it accepted the corrected plea agreement because the agreement s new provisions were not supported by independent consideration. Bailey did not object to We affirm. the acceptance of the corrected plea agreement. district court's Quite the opposite, Bailey personally confirmed that the corrected plea agreement accurately reflected the intent of the parties at the time that the original plea was entered. plain error. (1993). Therefore, our review is for See United States v. Olano, 507 U.S. 725, 732 To establish plain error, Bailey must show (1) there was error, (2) the error was plain, and (3) the error affected his substantial rights. Id. Even if these requirements are met, we will notice the error only if it seriously affects the fairness, integrity or public 3 reputation of judicial proceedings. Id. (internal quotation marks and alteration omitted). We conclude that the district court validly accepted a reformation of the original plea agreement. available when the parties, having reached Reformation is an agreement and having then attempted to reduce it to writing, fail to express it correctly in the writing. 27 Samuel Williston & Richard A. Lord, A Treatise on the Law of Contracts § 70:21 (4th ed. 2003). Both the Government and Bailey agreed before the district court that the corrected plea agreement accurately bargain that they had initially struck. that the district court did not reflected the Therefore, we conclude commit error, plain or otherwise, when it accepted the corrected plea agreement based on Bailey s representations. Accordingly, judgment. legal before we affirm the district court s amended We dispense with oral argument because the facts and contentions this court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 4

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