UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4649
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TEMEKA LASHELLE TANN,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Malcolm J. Howard, Senior
District Judge. (5:06-cr-00005-H)
Submitted: January 31, 2007 Decided: March 1, 2007
Before MOTZ, TRAXLER, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mitchell G. Styers, BANZET, THOMPSON & STYERS, P.L.L.C., Warrenton,
North Carolina, for Appellant. George E. B. Holding, United States
Attorney, Anne M. Hayes, Christine Witcover Dean, Assistant United
States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Temeka Lashelle Tann appeals her eighty-month sentence
after pleading guilty to one count of conspiracy to distribute and
possess with intent to distribute more than five grams of cocaine
base, in violation of 21 U.S.C. §§ 841(a)(1), 846 (2000). Tann
asserts the Government breached the plea agreement and committed
prosecutorial misconduct. We affirm.
Tann asserts the Government breached the plea agreement
by arguing at sentencing that Tann was not entitled to receive the
stipulated reductions it contained. The Government counters that
Tann’s continued criminal conduct breached the plea agreement and,
pursuant to the terms of the agreement, released the Government
from its stipulations. Tann did not object to the Government’s
actions at sentencing, and she must therefore demonstrate plain
error before she can obtain any relief. See United States v. Fant,
974 F.2d 559, 562 (4th Cir. 1992) (applying plain error analysis in
context of breach of plea agreement).
We find the Government did not breach the plea agreement.
The plea agreement clearly stated, “if [Tann’s] conduct prior to
sentencing changes the circumstances with respect to any such
factors, the Government is no longer bound to its position as to
those factors.” Tann does not deny that she sold drugs after
signing the plea agreement. Thus the Government was released from
any further obligations in the plea agreement.
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Tann also contends that the Government committed
prosecutorial misconduct by knowingly allowing her to enter into a
plea agreement while it withheld information that it used to
justify its subsequent refusal to file a substantial assistance
motion pursuant to U.S. Sentencing Guidelines Manual § 5K1.1. A
claim of prosecutorial misconduct is reviewed “to determine whether
the conduct so infected the trial with unfairness as to make the
resulting conviction a denial of due process.” United States v.
Scheetz, 293 F.3d 175, 185 (4th Cir. 2002) (internal quotation
marks and citation omitted). To prevail under this standard, Tann
must show that “the prosecutor’s remarks or conduct were improper
and, second . . . that such remarks or conduct prejudicially
affected [her] substantial rights” so as to deprive her of a fair
trial. Id.
We find that Tann cannot meet this standard. The plea
agreement clearly stated that the Government did not promise to
file a § 5K1.1 motion. Moreover, at the Rule 11 hearing, Tann
stated no one made undisclosed promises to induce her to plead
guilty. She also confirmed that the plea agreement was the entire
agreement between herself and the Government.
Accordingly, we affirm Tann’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.
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AFFIRMED
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