US v. Robert Peterson, No. 13-4295 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4295 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ROBERT PAIGE PETERSON, a/k/a Robbie, Defendant - Appellant. Appeal from the United States District Court for the Northern District of West Virginia, at Wheeling. John Preston Bailey, Chief District Judge. (5:12-cr-00020-JPB-JES-3) Submitted: October 24, 2013 Decided: November 7, 2013 Before WILKINSON, GREGORY, and SHEDD, Circuit Judges. Dismissed by unpublished per curiam opinion. Charles T. Berry, Fairmont, West Virginia, for Appellant. William J. Ihlenfeld, II, United States Attorney, Randolph J. Bernard, Robert H. McWilliams, Jr., Assistant United States Attorneys, Wheeling, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Robert plea agreement, intent to Peterson to one distribute Controlled pled count and 846 of pursuant conspiracy to He a written to possess I violation (2006). to Schedule distribute in Substances, §§ 841(b)(1)(c), guilty, of appeals, and 21 claiming with II U.S.C. that the government breached the plea agreement by failing to move for a downward departure pursuant to U.S. Sentencing Guidelines Manual (USSG) § 5K1.1 (2012). The Government has moved to dismiss the appeal based on the waiver in the plea agreement. For the reasons that follow, we dismiss the appeal. Where the government seeks to enforce an appeal waiver and did not breach its obligations under the plea agreement, the court will enforce the waiver if the defendant s waiver was knowing and intelligent and the issues raised on appeal fall within the scope of the agreement. F.3d 162, 168-69 (4th Cir. United States v. Blick, 408 2005). To determine whether an appeal waiver is knowingly and intelligently entered, the court examines the totality of defendant s experience, familiarity with the the circumstances, conduct, agreement s terms. General, 278 F.3d 389, 400 (4th Cir. 2002). is not fails to knowingly or specifically voluntarily question 2 made the if the background, educational including and United States v. An appeal waiver the defendant district court concerning the waiver provision of the plea agreement during the Rule 11 colloquy and the record indicates that the defendant did not otherwise understand the full significance of the waiver. United States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005) (quoting United States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992)). However, valid appeal this waiver court will against a not enforce defendant if an the otherwise government breached the plea agreement containing that waiver. States v. Cohen, 459 F.3d 490, 495 (4th Cir. 2006). United The party alleging that the Government breached the plea agreement bears the burden of showing by a preponderance of the evidence that a breach occurred. Cir. 2000). United States v. Snow, 234 F.3d 187, 189 (4th Because Peterson did not raise a claim that the Government breached the plea agreement in the district court, this court s review is for plain error. States, 556 U.S. 129, 134-36 (2009). standard, plainly Peterson breached must the show plea not v. United To prevail under this only agreement, Puckett that but the also Government that he was prejudiced by the error and that the breach was so obvious and substantial that failure to notice and correct it affected the fairness, integrity proceedings. or public reputation of the judicial United States v. McQueen, 108 F.3d 64, 66 (4th Cir. 1997) (internal quotation marks and alteration omitted). 3 We have reviewed the record and conclude that there was no breach, plain or otherwise. The plea agreement contained no promise by the Government to move for a § 5K1.1 reduction and, at his plea hearing, Peterson acknowledged that there was no such stipulation or agreement. Given that there was no breach of the plea agreement, the question is whether Peterson s appeal is barred appellate waiver contained in his plea agreement. it is. The district court specifically by the We find that questioned Peterson about the written appellate waiver and confirmed that Peterson understood he was waiving his right to appeal by entering the agreement. The unmistakable. terms of the waiver were See Blick, 408 F.3d at 169. clear and Because Peterson raises no claim outside the scope of the waiver, we find that the waiver is valid and enforceable. appeal. legal before Therefore, we dismiss the 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. DISMISSED 4