United States v. Embree

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 06-4985

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

ERNIE EMBREE,

Defendant - Appellant.

Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. James P. Jones, Chief District
Judge. (1:01-cr-00002-jpj-AL)

Argued: November 1, 2007 Decided: January 31, 2008

Before GREGORY and DUNCAN, Circuit Judges, and James A. BEATY, Jr.,
Chief United States District Judge for the Middle District of North
Carolina, sitting by designation.

Affirmed by unpublished opinion. Chief District Judge Beaty wrote
the opinion, in which Judge Gregory and Judge Duncan joined.

ARGUED: Fay Frances Spence, Roanoke, Virginia, for Appellant.
Zachary T. Lee, Special Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Abingdon, Virginia, for Appellee. ON
BRIEF: Larry W. Shelton, Federal Public Defender, Roanoke,
Virginia, for Appellant. John L. Brownlee, United States Attorney,
Roanoke, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
BEATY, Chief District Judge:

Defendant Ernie Embree appeals the district court’s

application of a 2-level sentencing enhancement for possession of

a dangerous weapon in connection with the offense to which he pled

guilty. On January 20, 2002, Embree signed a plea agreement with

the Government in which he agreed to plead guilty to Count Two of

a multiple count indictment, which charged him with conspiracy to

possess with intent to distribute and distribute more than 500

grams of a mixture of methamphetamine in violation of 21 U.S.C. §§

846 and 841(b)(1)(A). Embree was sentenced to 125 months in

prison. The court entered an Amended Final Judgment Order on

September 19, 2006. Embree timely appealed. On appeal, Embree

contends that the Government breached the plea agreement by arguing

for the 2-level enhancement for possession of a dangerous weapon in

connection with the offense at sentencing in contradiction to a

stipulation not to do so contained in the plea agreement. After a

thorough review of Embree’s claims, we affirm the district court’s

decision.

I.

In October 2000, a confidential informant informed Agent Brian

Snedeker of the Drug Enforcement Agency (DEA) that Embree was

involved in the distribution and manufacture of methamphetamine and

marijuana. The informant also told Agent Snedeker that Embree

2
carried handguns and a concealed knife in “like a shoulder harness”

during drug transactions. The investigation revealed that Embree

loaned money to Donna Richardson to finance her trips to California

to purchase methamphetamine. Embree and Richardson would then

distribute the methamphetamine that was purchased to friends and

co-workers. After Embree became upset at a loss of money, he ended

his attempts to obtain methamphetamine in California and began

attempts to manufacture his own methamphetamine.

On June 29, 2001, Embree was arrested by DEA agents at his

residence. At the time of Embree’s arrest, a 6-8 inch knife with

brass knuckles matching the description given earlier by the

informant was found in Embree’s vehicle. Also located within

Embree’s residence were numerous holsters for large caliber

revolvers and automatic handguns.

On January 30, 2002, Embree signed a plea agreement with the

Government in which he pled guilty to Count Two of the indictment

charging him with conspiracy to possess with intent to distribute

and distribute more than 500 grams of a mixture of methamphetamine.

The plea agreement provided in relevant part:

D. REMEDIES FOR BREACH OF PLEA AGREEMENT

I understand that if I breach any provision of this
agreement, at any time, that the United States Attorney’s
office [sic] may, at its election, pursue any or all of
the following remedies: (a) declare this plea agreement
null and void and proceed to trial; (b) refuse to
recommend that I be credited with acceptance of
responsibility . . . (g) refuse to abide by any other
sentencing or other stipulations contained in this

3
agreement; (h) take any other action provided for under
this agreement or by statute, regulation or court rule.

H. ACCEPTANCE OF RESPONSIBILITY

I hereby agree and stipulate that if I do any of the
following, I should not receive credit for acceptance of
responsibility and the United States will be free to make
any recommendations it wishes at sentencing or to declare
a breach of this plea agreement and seek the remedies set
forth in paragraph D: (1) attempt to withdraw my guilty
plea, (2) deny that I have committed any crime that I
have pled guilty to, (3) fail to cooperate with law
enforcement agents, (4) fail to testify truthfully, as to
any matter, if called upon to do so (at my sentencing or
any other court proceedings, . . . (6) make a false
statement . . .

J. STIPULATIONS AND RECOMMENDATIONS

The United States stipulates that at the time of the
execution of this plea agreement it possesses no
information which would prevent me from meeting the
criteria set forth in 18 U.S.C.A. § 3553(f)(1)-(4) and
U.S.S.G. § 5C1.2(1)-(4). In addition the United States
will afford me the opportunity to meet the criteria
contained in 18 U.S.C.A. § 3553(f)(5) and U.S.S.G. §
5C1.2(5). The parties further stipulate that the signing
and submission of this plea agreement meets the criteria
contained in U.S.S.G. § 3E1.1(b)(2).

L. SUBSTANTIAL ASSISTANCE

I understand and agree that I must provide complete and
truthful information to attorneys and law enforcement
officers of the Government and to neither attempt to
protect any person or entity through false information or
omission, nor falsely implicate any person or entity. .
. . I further understand that any violation of the terms
of this section may, at the election of the United States
Attorney’s Office, be treated as a breach of this Plea
Agreement, and the United States Attorney’s office [sic]
may exercise any right it may have under this Plea
Agreement in the event of breach by the defendant,
including but not limited to those remedies set forth in
section D of this Plea Agreement.

4
 On March 4, 2002, Embree appeared before the district court,

and entered his plea of guilty to Count Two of the indictment.

Following Embree’s plea hearing, a presentence report (“PSR”) was

prepared by the probation officer. Based on the available

information about the knife, gun holster and alleged firearms, the

probation officer recommended a 2-level enhancement for possession

of dangerous weapons in connection with the offense pursuant to

U.S.S.G. § 2D1.1(b)(1). The PSR also included a 3-level deduction

for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1(a).

Embree objected to the finding in the PSR regarding possession of

dangerous firearms and a knife in connection with the offense,

arguing that he never carried any guns on his person or in his

vehicle, and that the knife was used in his auto repair business.

The United States objected to Embree receiving credit for

acceptance of responsibility arguing that he failed to fully accept

responsibility for his role in the distribution of methamphetamine.

Embree’s sentencing hearing began on May 20, 2002, and upon

the court’s own motion was continued to May 29. At the May 29

sentencing hearing, the Government argued that Embree should not

receive credit for acceptance of responsibility and presented

evidence that Embree possessed a knife in connection with the

conspiracy to distribute methamphetamine in support of the

probation officer’s recommendation for a 2-level enhancement for

possession of dangerous weapons in connection with the offense. In

5
contending that Embree should not receive the benefit of the 3-

level deduction for acceptance of responsibility, the Government

argued that during the course of providing a factual basis for his

plea, Embree stated under oath that he “personally didn’t sell any

methamphetamine, myself,” and that he failed to accept

responsibility for all of the conduct relevant to the offense. The

Government then called Embree’s co-conspirator, Donna Richardson,

to testify as to Embree’s involvement in the conspiracy.

Richardson testified that Embree financed her trips to California

to purchase methamphetamine and that after taking a portion for

herself, Embree sold the remaining methamphetamine to friends and

co-workers. Embree also testified on his own behalf regarding his

acceptance of responsibility. Embree testified that he had sold

methamphetamine to friends, but that although he had possessed

chemicals with the intent to manufacture methamphetamine, he had

never actually manufactured any methamphetamine. Finally, Embree

testified regarding his involvement in the conspiracy, which

conflicted with testimony given by Richardson.

Regarding the Government’s contention that Embree possessed a

dangerous weapon in connection with the offense, the Government

called Agent Snedeker to testify. Agent Snedeker recounted the

information he received from the informant regarding Embree’s

possession of a knife and firearms which were kept in a gun holster

when Embree distributed methamphetamine. The Government also

6
presented evidence of a knife that was found in Embree’s vehicle

and gun holsters found in Embree’s residence at the time of his

arrest. Embree testified that he used the knife for cutting

fiberglass at his business and denied possessing firearms other

than a .22 caliber pistol that he bought for his wife and that was

kept at his residence.

At the close of evidence, the district court ruled that before

making any determinations regarding Embree’s acceptance of

responsibility or the possession of firearms or a knife in

connection with the offense, the matter should be continued until

Embree had been debriefed by the Government, affording him the

opportunity to fully and truthfully provide information concerning

the offenses with which he was involved.1

At the reconvening of Embree’s sentencing hearing on June 13,

2002, Agent Snedeker was recalled to testify concerning Embree’s

debriefing. Agent Snedeker testified that Embree told him that he

only received “[a] half ounce to two ounces each trip” from Donna

Richardson and that he purchased small amounts of methamphetamine

from other individuals. He also testified that Embree stated that

he had manufactured methamphetamine on one occasion. Finally,

1
Embree’s initial counsel died after Embree signed the plea
agreement, but before he entered his plea of guilty. As a result
of the reassignment of counsel, at the time of his sentencing
hearing on May 29, 2002, Embree had not yet had the opportunity to
be debriefed by the Government.

7
Agent Snedeker testified that Embree admitted selling

methamphetamine to people at work and other associates.

At the conclusion of Agent Snedeker’s testimony, addressing

both the Government and Embree’s objections, the district court

found Embree’s credibility to be “suspect” with regard to the true

purpose of the weapons and the extent of his involvement in the

methamphetamine transactions with Richardson. Specifically, the

district court found that Embree’s admission that he financed

Richardson’s trips to California to buy methamphetamine was

sufficient within the meaning of the acceptance of responsibility

provision of the Sentencing Guidelines to afford him the benefit of

receiving the 3-level deduction. However, the district court also

denied Embree the benefit of application of the safety valve

provision pursuant to U.S.S.G. § 5C1.2, finding that Embree had not

met the requirements of the provision by “truthfully setting forth

his involvement in the same course of conduct as involved with the

offense of conviction.” Specifically, the court noted that while

Embree agreed to financing the trips to California, “that’s

essentially all that he agrees to.” The court found more credible

the evidence that Embree was involved not only in the manufacture

of methamphetamine, but that he also sold methamphetamine “to a

much greater extent than he’s admitted.” Finally, the district

court denied Embree’s objection to the 2-level enhancement for

possession of a dangerous weapon in connection with the offense

8
finding that Embree did in fact possess both firearms and a knife

in connection with the conspiracy to distribute methamphetamine.

Concluding that Embree had a total offense level of 31, criminal

history category of 1, and sentencing guideline range of 120 months

to 135 months of imprisonment, Embree was then sentenced to 125

months in prison.

II.

On appeal, Embree argues that the Government breached the plea

agreement by arguing at sentencing for a 2-level enhancement for

possession of a dangerous weapon in connection with the offense

after stipulating in the plea agreement that it possessed “no

information which would prevent [Embree] from meeting the criteria

set forth in 18 U.S.C.A. § 3553(f)(1)-(4) and U.S.S.G. § 5C1.2(1)-

(4).” The Government contends that Embree failed to raise the

argument that a breach of the plea agreement had occurred at the

time of his sentencing and thus, we should affirm the sentence

imposed by the district court unless we find plain error.2

Additionally, the Government argues that the plea agreement

2
When arguing against the 2-level enhancement at sentencing,
defense counsel argued that the Government stipulated in the plea
agreement that it had no information which would prevent the
application of the safety valve provision. Although trial counsel
failed to use the word “breach,” counsel did make the argument that
the Government’s position at sentencing was inconsistent with its
stipulation in the plea agreement. Therefore, we hold that Embree
has not raised this issue for the first time on appeal.

9
contains no stipulations or agreements relating to the application

of the 2-level enhancement for possession of dangerous weapons and

that, therefore, it is not in breach of the plea agreement by

arguing for such an application at sentencing. Finally, the

Government contends that Embree breached the plea agreement,

thereby relieving it of its obligations under the agreement, by:

(1) making a false statement under oath; (2) failing to accept

responsibility; and (3) providing false information at the

debriefing. We will review each of Embree’s claims in turn.

i.

In calculating Embree’s sentencing guideline range, the

district court applied a 2-level enhancement for possession of a

dangerous weapon in connection with the offense to which he pled

guilty pursuant to U.S.S.G. § 2D1.1(b)(1). Embree argues that the

Government breached its written plea agreement by arguing for the

dangerous weapons enhancement at sentencing. The Government

contends that the plea agreement contains no stipulations or

agreements relating to the application of the dangerous weapons

enhancement under U.S.S.G. § 2D1.1, and that, therefore, it is not

in breach of the agreement by arguing for the enhancement at

sentencing.

Although plea agreements between the Government and a

defendant are unique and call for special due process

10
considerations, the judicial interpretation of a plea agreement is

largely governed by the law of contracts. United States v. Conner,

930 F.2d 1073, 1076 (4th Cir. 1991). If the Government breaches

express or implied terms of the plea agreement, a violation of due

process occurs. Mabry v. Johnson, 467 U.S. 504, 509 (1984).

Because violations of plea agreements on the part of the Government

not only violate a defendant’s constitutional rights, but also

involve the “honor of the Government, public confidence in the fair

administration of justice, and the effective administration of

justice,” a breach of the agreement by the Government constitutes

plain error. United States v. McQueen, 108 F.3d 64, 66 (4th Cir.

1997).

In the present case, the Government stipulated that it

possessed no information that would prevent application of 18

U.S.C. § 3553(f)(1)-(4) and U.S.S.G. § 5C1.2(1)-(4). Title 18 of

United States Code section 3553(f)(1)-(4) and U.S.S.G § 5C1.2(1)-

(4) concern the application of the so-called “safety valve”

provision. The safety valve provision entitles the sentencing

judge to impose a sentence in accordance with the guidelines

without regard to the statutory minimum sentence, if certain

criteria are met. The criteria for application of the safety valve

provision are set out in 18 U.S.C. § 3553(f)(1)-(4) and U.S.S.G. §

5C1.2. One of the criteria included in those statutes, which are

identical, states that: “the defendant did not use violence or

11
credible threats of violence or possess a firearm or other

dangerous weapon (or induce another participant to do so) in

connection with the offense.” 18 U.S.C. § 3553(f)(2) (2002);

U.S.S.G. § 5C1.2(2)(2002). The statute pertaining to the

application of the dangerous weapons enhancement which is at issue

in this appeal is found in U.S.S.G. § 2D1.1(b)(1) and provides, “if

a dangerous weapon (including a firearm) was possessed, increase by

2 levels.” U.S.S.G. § 2D1.1(b)(1) (2002).

We agree that on its face, the plea agreement contains no

language regarding the dangerous weapons enhancement provision

under U.S.S.G. § 2D1.1. However, we do not agree that the

Government should benefit from such a strict interpretation of the

plea agreement. See, United States v. Bowler, 585 F.2d 851, 854

(7th Cir. 1978) (holding that a plea agreement is not the

appropriate context for “rigidly literal” construction.); Palermo

v. Warden, 545 F.2d 286, 295 (2d. Cir. 1976) cert. dismissed, 431

U.S. 911 (1977) (holding that the Government’s invocation of

restrictive contract principles is “disingenuous”). By stipulating

that it had no information that would prevent Embree from meeting

the criteria in U.S.S.G. § 5C1.2(1)-(4), the Government was

stipulating that it had no information that Embree possessed a

firearm or other dangerous weapon in connection with the offense.

In order to apply a 2-level enhancement for possession of a

dangerous weapon in connection with the offense under U.S.S.G. §

12
2D1.1(b)(1) a showing is required that Embree did in fact possess

a weapon in connection with the conspiracy to distribute

methamphetamine. The Government argued at sentencing that this

indeed was the case with respect to Embree.

If the plea agreement at issue is clear and unambiguous, the

agreement should be enforced as written. United States v. Harvey,

791 F.2d 294, 301 (4th Cir. 1986). In the present case, the

Government contends that because the plea agreement makes no

mention of U.S.S.G. § 2D1.1, there could be no ambiguity as to

whether the plea agreement prohibited the Government from arguing

for the enhancement under section 2D1.1 at Embree’s sentencing.

Embree argues that the stipulation regarding U.S.S.G. § 5C1.2 is at

least ambiguous as to whether it prevents the Government from

arguing as it did for the enhancement under section 2D1.1. Because

the challenged stipulation is subject to two interpretations, the

one proffered by the Government and the one advanced by the

Defendant, and because there is no extrinsic evidence in the record

from which the Court could determine the mutual understanding of

the parties, we conclude that the stipulation at issue is

ambiguous.

This result is consistent with United States v. Harvey, where

this Court held that “constitutional and supervisory concerns

require holding the Government to a greater degree of

responsibility than the defendant . . . for imprecisions or

13
ambiguities in plea agreements.” 791 F.2d at 300-01. “This is

particularly appropriate where, as will usually be the case, the

Government has proffered the terms or prepared a written agreement

- for the same reasons that dictate that approach in interpreting

private contracts.” Id. at 301. Thus, where there is no extrinsic

evidence of a mutual understanding of the interpretation urged by

the Government, ambiguities or imprecisions in the plea agreement

will be construed against the Government and in favor of the

defendant. Id. at 301-303. Applying these principles here, we will

resolve the ambiguity as to whether the stipulation as stated in

the plea agreement concerning the safety valve provision prohibited

the Government from arguing for application of the dangerous

weapons enhancement under section 2D1.1, in favor of Embree.

ii.

Turning now to the merits of Embree’s argument that the

Government breached the stipulation in the plea agreement by

arguing for the 2-level enhancement under section 2D1.1, this case

is analogous to United States v. Badaracco, 954 F.2d 928 (3d Cir.

1992). In Badaracco, the Government entered into a plea agreement

with the defendant in which it stipulated that the offense did not

involve more than minimal planning. Id. at 933. However, in

accordance with the presentence report, the district court

increased the defendant’s offense level because the probation

14
department found that the offense involved “more than minimal

planning.” Id. at 939. At the defendant’s sentencing hearing,

the Government changed its position and argued that “there was an

affirmative step taken by Mr. Badaracco indicating that he was

concealing something . . .” Id. The Third Circuit Court of

Appeals concluded that the Government’s argument made contrary to

the plea agreement provided a basis for the district court to

reject the Government’s stipulation and to adopt the recommendation

of the probation department. Id. at 940. The court held that

where the Government stated in court that there was an affirmative

step taken by the defendant indicating that he was concealing

something, and presented direct evidence to that effect, the

Government had indeed breached the plea agreement. Id. at 941.

The court further held that because the Government was aware of the

defendant’s concealment of his interests when he entered into the

plea agreement, “the Government [was] not free to breach its

agreement with a defendant because it decides after the fact that

it has made a bad bargain.” Badaracco, 954 F.2d at 941 (holding

that the Government breached the plea agreement because in part,

the prosecutor knew at the time she entered into the plea agreement

of the defendant’s potential for prosecution in another

jurisdiction, and testimony that she “was hoping that [the

defendant] wouldn’t ask her specifically about the coverage of the

agreement.”).

15
 Similarly, in the present case, the Government entered into a

stipulation in a plea agreement and changed its position at

sentencing. In this instance, the Government stipulated that at

the time of the plea agreement, it had no information that Embree

possessed a dangerous weapon in connection with the offense. Like

the prosecutors in Badaracco, the Government did in fact possess

information which contradicted the stipulation they later entered

into under the agreement. The record in this case reveals that in

fact, the Government had knowledge that Embree possessed multiple

firearms in connection with the offense as a result of Agent

Snedeker’s interviews with the confidential informant leading up to

Embree’s arrest and because of the gun holsters recovered from his

residence at the time of his arrest. Further, the Government knew

of Embree’s possession of a knife in connection with the offense

before it entered into the stipulation in the plea agreement

because of the informant’s conversations with Agent Snedeker, to

which he testified, and because the knife was recovered from

Embree’s vehicle at the time of his arrest.

The Government freely entered into the plea agreement with

Embree and expressly agreed to the stipulation that it possessed no

information which would prevent application of the safety valve

provision. In so doing, the Government was agreeing that it

possessed no information that Embree possessed a dangerous weapon

in connection with the offense. Embree relied on the Government’s

16
promise to adhere to this stipulation in deciding to enter a plea

of guilty and thus to forego his constitutional right to a jury

trial. The Government then changed its position at sentencing by

arguing that Embree possessed a weapon in connection with the

offense to which he pled guilty. The Government’s argument for a

2-level enhancement for possession of a dangerous weapon in

connection with the offense “violated the spirit, if not the

letter” of the plea agreement. Badaracco, 954 F.2d 928, 940 (3d

Cir. 1992). The Government’s argument provided the district court

with a basis for not only denying Embree the benefit of application

of the safety valve provision, but also for the application of the

2-level sentencing enhancement. Therefore, we conclude that by

arguing for the 2-level enhancement under U.S.S.G. § 2D1.1(b)(1),

the Government indeed breached its obligations under the Plea

Agreement.

iii.

Notwithstanding the Court’s holding that the Government

breached the plea agreement in the manner previously described, we

now address the Government’s argument that Embree breached the

agreement, thereby excusing any breach on behalf of the Government.

The party asserting the breach must prove by a preponderance of the

evidence that he fulfilled all of his obligations under the

agreement. United States v. Snow, 234 F.3d 187, 189 (4th Cir.

17
2000). Thus, Embree as the party asserting the breach, must also

establish that he has satisfied his own obligations under the plea

agreement in order to prevail. Id. The Government in this regard

contends that Embree breached the plea agreement by: (1) making a

false statement under oath; (2) failing to accept responsibility;

and (3) providing false information at the debriefing.

Although the facts of this case are not in dispute, the

question of whether Embree breached the plea agreement by making a

false statement during his testimony at his plea hearing is an

issue of fact, and therefore, we review the district court’s

findings on this issue for clear error. Snow, 234 F.3d at 189. The

district court acknowledged and freely relied upon the Government’s

argument at sentencing that Embree had testified inconsistently.

The district court, however, did not find that Embree had committed

perjury at his plea hearing because Embree did in fact testify at

sentencing that he sold methamphetamine on occasion. The district

court therefore interpreted Embree’s statement at his plea hearing

as a denial that he was engaged in the widespread or commercial

sale of methamphetamine. As such, the district court further found

that Embree’s statements were not necessarily inconsistent. The

Government has not appealed the district court’s findings in this

regard, and we hold that the district court did not clearly err in

finding that Embree did not make a false statement under oath in

breach of the plea agreement.

18
 Second, with regard to the Government’s contention that Embree

committed a breach of the plea agreement by failing to accept

responsibility for the offense to which he pled guilty in violation

of paragraph H of the plea agreement, this is also a question of

fact which we review for clear error. Snow, 234 F.3d at 189. In

overruling the Government’s objection to Embree’s receipt of an

adjustment for acceptance of responsibility, the district court

found that Embree had admitted his involvement within the meaning

of the acceptance of responsibility provision. Specifically, the

district court found that Embree admitted to financing Richardson’s

trips to California to purchase methamphetamine, and that that was

sufficient to allow him to obtain the deduction for acceptance of

responsibility. Again, the Government does not dispute the

district court’s factual findings, and we conclude that the

district court did not clearly err in finding that Embree did not

fail to accept responsibility for conspiracy to distribute

methamphetamine in breach of the plea agreement.

Finally, however, the Government’s contention that Embree

provided false information to officers in his debriefing has merit

and it is consistent with the district court’s findings of fact.

Whether Embree’s false statements constitute a material breach of

the plea agreement is a question of law, which we review de novo.

United States v. Martin, 25 F.3d 211, 217 (4th Cir. 1994)

(“principles of contract interpretation applied to the facts are

19
reviewed de novo.”). One of the requirements of the safety valve

provision is that the defendant “truthfully provide[ ] to the

Government all information and evidence the defendant has

concerning the offense or offenses that were part of the same

course of conduct or of a common scheme or plan. . .” U.S.S.G. §

5C1.1(a)(5). Further, Paragraph L of the plea agreement obligated

Embree to provide complete and truthful information to attorneys

and law enforcement and not to give any false information. In

denying Embree the benefit of the safety valve provision, the

district court found that he did not truthfully set forth his

involvement in the same course of conduct as involved with the

offense. Specifically, the district court found that while Embree

agreed that he financed Richardson’s trips to California, the

evidence sufficiently established that he not only was involved in

the later manufacture of methamphetamine to an extent “much greater

than he’s admitted,” but that he also personally sold

methamphetamine “to a much greater extent than he’s admitted.”

Embree argues, however, that in the plea agreement, he

reserved the right to provide evidence about conduct relevant to

the same course of conduct in support of his request for

application of the safety valve provision. In raising this

argument, Embree contends that any breach on his behalf regarding

the information he provided to law enforcement and at sentencing is

analogous to the defendant’s arguments in United States v. Peglera,

20
33 F.3d 412 (4th Cir. 1994). In Peglera, the defendant appealed

the imposition of his sentence arguing that the Government had

breached a plea agreement in which it agreed to recommend the

lowest end of the sentencing guidelines and a 3-level reduction for

acceptance of responsibility. Id. at 413. At sentencing the

Government argued that it was no longer bound by the terms of the

plea agreement because Peglera testified that he personally

distributed only powder cocaine, and not the cocaine base for which

he pled guilty. Id. at 412-13. In Peglera, we held that while the

Government’s argument had considerable force under some

circumstances, it failed in this instance because the agreement

expressly reserved Peglera’s right to argue that the “Schedule II

narcotic controlled substance for which he should be held

accountable is cocaine hydrochloride [powder cocaine].” Id. at 414.

Further, the Government had acknowledged Peglera’s right to dispute

his responsibility for distributing cocaine base at sentencing.

Id. Therefore, we concluded that Peglera had not breached the plea

agreement so as to excuse the Government’s own breach.

The present case, however, can be distinguished from Peglera

because there was no similar provision in Embree’s plea agreement

which entitled him to give false information regarding the extent

of his involvement in the conspiracy to which he pled guilty. In

fact, this plea agreement required Embree to fully and truthfully

disclose his involvement in the offense. The district court found

21
that Embree failed to provide truthful information regarding the

conspiracy to distribute methamphetamine. By failing to provide

complete and truthful information relating to the offense, Embree

breached his agreement with the Government. See also, United

States v. Lyons, No. 05-4735, 2006 WL 3253195 (4th Cir. Nov. 8,

2006)(holding that where defendant was not initially truthful with

law enforcement concerning information on drug deals and failed to

“cooperate” with the government in accordance with the terms of the

plea agreement, the government did not breach the agreement by

failing to move for the normal 50% 5K1.1 departure and instead

moving for a 25% reduction). Unlike Peglera, Embree can point to

no provision in this agreement that excuses his breach. According

to paragraph D of the plea agreement, upon Embree’s breach of the

agreement, the Government was entitled to refuse to abide by the

stipulations contained in the agreement, including the stipulation

that it had no information that Embree possessed a dangerous weapon

in connection with the offense. Therefore, we hold that Embree’s

breach of the plea agreement based upon his failure to fully and

truthfully disclose his involvement in the conspiracy precludes him

from the relief he has requested in his appeal. Accordingly, we

conclude that the district court did not err in imposing a 2-level

enhancement for possession of a dangerous weapon in connection with

the offense.

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 III.

For all the reasons stated above, the district court’s

application of a 2-level enhancement against Embree under U.S.S.G.

§ 2D1.1(b)(1) is affirmed.

AFFIRMED

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