UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4819
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
VELARIAN CARTER, a/k/a Larry Carter,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley. David A. Faber, Chief
District Judge. (CR-04-217)
Submitted: March 31, 2006 Decided: April 20, 2006
Before MOTZ, TRAXLER, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Matthew M. Robinson, Cincinnati, Ohio, for Appellant. Charles T.
Miller, Acting United States Attorney, Miller A. Bushong, III,
Assistant United States Attorney, Beckley, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Velarian Carter pled guilty pursuant to an oral plea
agreement to conspiracy to distribute 500 grams or more of cocaine
and possession of marijuana with intent to distribute. Without
objection, the district court sentenced Carter to ten years’
imprisonment, which the court stated was the agreed upon sentence
under the plea agreement. On appeal, Carter contends that the
district court misunderstood the plea agreement, which instead
capped his sentence at ten years but did not prohibit a lower
sentence. In addition, Carter asserts that his sentence under the
advisory guidelines scheme of United States v. Booker, 543 U.S. 220
(2005), violated the Ex Post Facto Clause. We affirm.
Plea agreements are grounded in contract law, and both
parties should receive the benefit of their bargain. United
States v. Bowe, 257 F.3d 336, 345 (4th Cir. 2001). Because of
constitutional and supervisory concerns, the government is held to
a greater degree of responsibility for imprecisions or ambiguities
in plea agreements. United States v. Harvey, 791 F.2d 294, 300-01
(4th Cir. 1986). Where an agreement is ambiguous in its terms, the
terms must be construed against the government. Id. at 303.
However, “[w]hile the government must be held to promises it made,
it will not be bound to those it did not make.” United States v.
Fentress, 792 F.2d 461, 464-65 (4th Cir. 1986).
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Although the district court stated on more than one
occasion that Carter’s sentence was “capped” at ten years, Carter
unambiguously agreed to a flat, ten-year sentence. The Government
informed the court that the agreement was for a ten-year sentence,
and Carter did not object. Carter’s counsel stated that he advised
his client to accept the guaranteed ten-year sentence, because had
he gone to trial, he faced a much longer sentence. At sentencing,
the Government again referred to the flat, ten-year agreement.
Carter’s counsel did not argue for a lower sentence but merely
requested counseling and a specific placement. In addition, when
the court stated that it was bound to impose the ten-year sentence,
Carter did not object. The record clearly shows that the parties
agreed to a ten-year sentence under Federal Rule of Criminal
Procedure 11(c)(1)(C), and Carter’s protestations to the contrary
are disingenuous.
In addition, Carter’s ex post facto argument is
foreclosed by the plea agreement. He stipulated to a ten-year
sentence, and that is what he received. In fact, he was not
sentenced under the Booker remedial advisory scheme. Instead, he
was sentenced solely on his agreement. Moreover, even considering
his ex post facto argument on the merits, it is unavailing. See
United States v. Dupas, 419 F.3d 916, 919-21 (9th Cir. 2005), cert.
denied, 126 S. Ct. 1484 (2006); United States v. Jamison, 416 F.3d
538, 539 (7th Cir. 2005); United States v. Scroggins, 411 F.3d 572,
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575-76 (5th Cir. 2005); United States v. Duncan, 400 F.3d 1297,
1306-08 (11th Cir.), cert. denied, 126 S. Ct. 432 (2005).
Based on the foregoing, we affirm Carter’s sentence. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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