US v. Desmond Fletcher, No. 13-4539 (4th Cir. 2014)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4539 UNITED STATES OF AMERICA, Plaintiff Appellee, v. DESMOND FLETCHER, Defendant - Appellant. Appeal from the United States District Court for the District of Maryland, at Greenbelt. Roger W. Titus, Senior District Judge. (8:11-cr-00429-RWT-1) Submitted: July 29, 2014 Decided: September 4, 2014 Before DUNCAN, KEENAN, and DIAZ, Circuit Judges. Dismissed in part; affirmed in part by unpublished per curiam opinion. Francis A. Pommett, III, NATHANSON & POMMETT, P.C., Baltimore, Maryland, for Appellant. Rod J. Rosenstein, United States Attorney, Deborah A. Johnston, Assistant United States Attorney, Greenbelt, Maryland, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Desmond 72-month Fletcher sentence possession of a appeals pursuant imposed firearm from to by a convicted his conviction his guilty felon. and plea On to appeal, Fletcher raises two claims: (1) whether the Government breached his plea agreement by de facto arguing for an upward departure and (2) whether his sentence was reasonable. In response, the Government has filed a motion to dismiss based upon Fletcher s waiver of his right to appeal in his plea agreement. By previous order, we denied the motion to dismiss Fletcher s claim that the Government breached the plea agreement, finding that such a claim was not barred by Fletcher s waiver. As to Fletcher s sentencing claims, we deferred action on the motion to dismiss decided. portion until the merits of the breach claim had been Briefing is now complete, and we grant the remaining of the motion to dismiss, dismiss the appeal of Fletcher s sentence, and affirm Fletcher s conviction. Because Fletcher did not argue in district court that the Government agreement, establish this plain breached claim error, is its obligations reviewed [Fletcher] for must under plain show the error. that an plea To error occurred, that the error was plain, and that the error affected his substantial rights. 247, 249 (4th Cir. 2007). United States v. Muhammad, 478 F.3d Even if Fletcher satisfies these 2 requirements, correction of the error remains within [the Court s] discretion, which [the Court] should not exercise . . . unless the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings. Id. (internal quotation marks and citation omitted). Plea agreements are grounded in contract law, and both parties should receive the benefit of their bargain. States v. Dawson, 587 F.3d 640, 645 (4th Cir. United 2009). The Government breaches a plea agreement when a promise it made to induce the plea goes unfulfilled. 404 U.S. 257, supervisory 262 (1971). concerns, See Santobello v. New York, of constitutional Government the Because is held to a and greater degree of responsibility than the defendant for imprecision or ambiguities in plea agreements. F.2d 41, 44 (4th Cir. 1992). United States v. Garcia, 956 Where an agreement is ambiguous in its terms, the terms must be construed against the Government. United States v. Harvey, 791 F.2d 294, 303 (4th Cir. 1986). However, [w]hile the government must be held to the promises it made, it will not be bound to those it did not make. United States v. Fentress, 792 F.2d 461, 464 (4th Cir. 1986). Fletcher admits that the Government recommended a sentence within the calculated Guidelines as promised in the plea agreement. extensive However, Fletcher argues that the Government s argument on the 18 U.S.C. 3 ยง 3553 (2012) factors, including details of Fletcher s criminal history and the search warrant application, amounted to mere lip service to its obligation to recommend a sentence within the Guidelines range. These arguments, according to Fletcher, constituted an implicit request for agreement. an upward departure and a breach of the plea The court, faced with a Guidelines range of 46-57 months, imposed a variant sentence of 72 months in prison. Even assuming that the Government s conduct constituted a breach of the plea agreement, Fletcher cannot show either that any breach affected his substantial rights or that we should exercise our discretion to correct any error. In sentencing Fletcher, the district court appeared to rely most heavily on the circumstances of Fletcher s crime and his criminal background, details of which were in the presentence report and not objected to by Fletcher. Fletcher thus cannot show that, absent the Government s argument, the district court would have imposed a lower sentence. showing were Guidelines possible, range clearly Fletcher Moreover, even if this was anticipated by sentenced within his agreement. plea a Therefore, we conclude that any error does not seriously call 4 into question the fairness or integrity of judicial proceedings. 1 See Muhammad, 478 F.3d at 249. Having determined that any breach of the plea agreement did not constitute reversible error, we consider the application of the appeal waiver validity of an appeal waiver de novo. 592 F.3d 621, 626 (4th Cir. 2010). therein. We review the United States v. Manigan, Generally, we will enforce an appellate waiver contained in a plea agreement if the waiver is valid and the issue sought to be appealed falls within the scope of the waiver. (4th Cir. 2006). and voluntarily sentence. United States v. Cohen, 459 F.3d 490, 494 Fletcher does not dispute that he knowingly waived his appellate rights regarding his However, he questions whether the plea agreement (and particularly the wording of the waiver) was valid, given that 1 Fletcher makes certain additional related, and meritless, claims. First, he asserts that the Government s invitation for the district court to consider facts in the search warrant application that Fletcher did not admit violated Apprendi v. New Jersey, 530 U.S. 466 (2000). However, Apprendi is entirely inapplicable to sentencing and Guidelines rulings, absent some allegation (absent here) that Fletcher was sentenced above the maximum statutorily available sentence for the crime to which he pled guilty. See United States v. Promise, 255 F.3d 150, 157 n.5 (4th Cir. 2001). Fletcher also argues that permitting the Government to use the search warrant application against him at sentencing violated his substantial rights because he gave up his right to challenge the legality of the search warrant pursuant to the plea agreement. This argument is similarly without merit, as the plea agreement made no mention of the search warrant or the information therein. Moreover, the court stated that it did not rely on the search warrant application. 5 there was a mutual mistake in predicting the base offense level, and whether the issues sought to be appealed fall within the scope of the waiver. Fletcher argues that his challenges to the reasonableness of his sentence either fall outside the scope of the waiver or rendered his waiver involuntary because there was a mutual mistake and ineffective assistance in the negotiation of the plea agreement. According to Fletcher, had the parties correctly predicted the Guidelines range, he would have been permitted to appeal from his current sentence, as it exceeded the Guidelines range. 2 merit. We find that Fletcher s claim is without While the parties were mistaken in their calculation of the potential Guidelines range, Fletcher agreed that the court was not bound by any stipulations in the plea agreement and explicitly waived his right to appeal any issues that relate to the establishment of the advisory guidelines range, as well as the calculation mistake of concerning any the term of proper 2 imprisonment. Guidelines A range mutual is an In the plea agreement, the Government predicted that Fletcher s adjusted offense level would be 25, resulting in a Guidelines range of 70-87 months, and Fletcher agreed to waive an appeal of any sentence that did not exceed that Guidelines range. However, due to a legal issue not foreseen by the parties, Fletcher s actual adjusted offense level was 21, resulting in a Guidelines range of 46-57 months. Thus, while his sentence exceeded his Guidelines range, it did not exceed 87 months. 6 insufficient basis to void a plea agreement. United States v. Riggi, 649 F.3d 143, 149 (2d Cir. 2011) (upholding appeal waiver based on incorrect assumptions regarding the Guidelines calculations); see also United States v. Garland, 122 F.2d 118, 122 (4th Cir. 1941) (holding that mutual mistake in a prophecy or opinion is not grounds for recession of a contract). As Fletcher waived his right to appeal from any sentencing issues so long as his sentence did not exceed the Guidelines range calculated with an adjusted offense level of 25 (and it indisputably did not), his claim that his sentence was unreasonable falls strictly within the scope of the waiver. Thus, we grant the Government s motion to dismiss Fletcher s sentencing dispense claims. with contentions are oral We affirm argument adequately Fletcher s because presented in the the conviction. facts We and legal materials before this court and argument would not aid the decisional process. DISMISSED IN PART; AFFIRMED IN PART 7
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