US v. Benjamin Weatherly, No. 13-4325 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4325 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. BENJAMIN WEATHERLY, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Anthony John Trenga, District Judge. (1:12-cr-00477-AJT-2) Submitted: October 31, 2013 Decided: November 7, 2013 Before MOTZ, KING, and WYNN, Circuit Judges. Dismissed by unpublished per curiam opinion. Edwin S. Booth, SHUTTLEWORTH, RULOFF, SWAIN, HADDAD & MORECOCK, PC, Virginia Beach, Virginia, for Appellant. Neil H. MacBride, United States Attorney, Maya D. Song, Kosta S. Stojilkovic, Assistant United States Attorneys, Alexandria, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Benjamin sentence imposed Weatherly after he seeks pled to appeal guilty, the 120-month pursuant to a plea agreement, to one count of conspiracy to commit bank fraud, in violation of 18 U.S.C. §§ 1344, 1349 (2012), and one count of aggravated identity § 1028A(a)(1) theft, (2012). On in violation appeal, Weatherly of 18 argues U.S.C. that the Government breached the plea agreement by arguing in support of an enhancement of his offense level for use of sophisticated means, pursuant to U.S. Sentencing § 2B1.1(b)(10)(C) (2012). not breach should be the plea dismissed Guidelines Manual (USSG) The Government responds that it did agreement, based on the and that waiver Weatherly s of appellate appeal rights included in the plea agreement. The plea agreement included the parties agreement regarding the base offense level and enhancements for intended loss, number agreement of further victims, noted and that obstruction the parties of justice. would The litigate the applicability of a two-level enhancement for a leadership role pursuant to USSG § 3B1.1, but did not mention the applicability of an enhancement for Guidelines provisions. sophisticated means or any other In the presentence investigation report, the probation officer recommended the base offense level and 2 enhancements recommended recommended in enhancements the for plea use agreement, of and sophisticated also means, possession or use of an authentication device, and leadership role. USSG Weatherly §§ 2B1.1(b)(10)(C), objected calculation. to 2B1.1(b)(11)(A), essentially the entire 3B1.1(b). offense level The Government agreed that the enhancement for an authentication device should not apply, but requested a sentence within the enhancement. Guidelines range determined after deleting that The district court sustained Weatherly s objection to the authentication device enhancement, overruled his other objections, and imprisonment on sentenced the Weatherly conspiracy to count ninety-six and months twenty-four of months consecutive on the identity theft count, for a total sentence of 120 months of imprisonment. On appeal, Weatherly argues that the plea agreement contemplated all because did it Guidelines not provisions mention an and enhancements, enhancement for use and of sophisticated means, the Government breached the agreement by arguing in support of the enhancement. not assert before the district court Because Weatherly did that the Government breached the plea agreement, this court s review is for plain error. Puckett v. United States, 556 U.S. 129, 133-34 (2009) (holding Fed. R. Crim. P. 52(b) plain error rule applies to 3 claim of breach of plea agreement). Accordingly, Weatherly must show plainly not only that the Government breached his plea agreement, but also that he was prejudiced by the error and that the breach notice public and was so correct reputation obvious it of and substantial affect[s] the the judicial that fairness, failure to integrity or proceedings. United States v. McQueen, 108 F.3d 64, 66 (4th Cir. 1997) (internal quotation marks and alteration omitted). The interpretation of plea agreements is guided by contract law, and parties to the agreement should receive the benefit of their bargain. Id. This court appl[ies] the plain meaning of the agreement s terms with the goal of providing each party the benefit of its bargain. F.3d 583, 588 (4th Cir. 2013). United States v. Weon, 722 The Government breaches a plea agreement when a promise it made to induce the plea remains unfulfilled. Santobello v. New York, 404 U.S. 257, 262 (1971). But, the government is held only to those promises that it actually made, and the government s duty in carrying out its obligations under a plea agreement is no greater than that of fidelity to the agreement. United States v. Dawson, 587 F.3d 640, 645 (4th Cir. 2009) (internal quotation marks and citation omitted); see also United States v. Davis, 689 F.3d 349, 353 (4th Cir. 2012) ( Davis s claim for breach fails insofar as he 4 seeks the benefit of a promise that the government never made. ). Our review of the record leads us to conclude that the Government did not breach the plea agreement. The section of the recommendations agreement specifically nonbinding containing referred sentence 11(c)(1)(B). to the the Guidelines provision recommendations. Further, the in Rule Fed. agreement 11 regarding R. contained Crim. no P. language precluding the parties from arguing the applicability of other Guidelines provisions that might be recommended by the probation officer. Finally, the agreement stated that it was the entire agreement between the parties and that [a]ny modification of this plea agreement shall be valid only as set forth in writing in a supplemental or revised plea agreement signed by all parties. When 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. United States v. Blick, 408 F.3d 162, 168-69 (4th Cir. 2005). provided that Weatherly waived The waiver in this case the right to appeal the conviction and any sentence within the statutory maximum . . . 5 (or the manner in which that sentence was determined) on the grounds set forth in Title 18, United States Code, Section 3742 or on any ground whatsoever. This court reviews the validity of an appellate waiver de novo. 2010). United States v. Manigan, 592 F.3d 621, 626 (4th Cir. To determine whether an appeal waiver is knowingly and intelligently entered, the court examines the totality of the circumstances, educational terms. including background, the and defendant s familiarity experience, with the conduct, agreement s United States v. General, 278 F.3d 389, 400 (4th Cir. 2002). In this case, Weatherly does not assert that the appellate waiver was not knowing or intelligent, or that his agreement to the waiver was in any way involuntary. Our review of the plea hearing transcript reveals that the district court confirmed that Weatherly was competent to plead guilty, and that he had discussed the plea agreement with counsel before signing it. The court specifically questioned Weatherly about the appellate waiver and confirmed that he understood he was waiving his right to appeal by entering the agreement. district court sentenced Weatherly within the Because the applicable statutory maximums, and he raises no claim outside the scope of the waiver, it is valid and enforceable. 6 According, we dismiss Weatherly s appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. DISMISSED 7