UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4983
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMES H. WILKINS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, Chief
District Judge. (3:08-cr-00076-JRS-1)
Submitted: September 24, 2009 Decided: October 9, 2009
Before WILKINSON, GREGORY, and AGEE, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Steven P. Hanna, Richmond, Virginia, for Appellant. Dana J.
Boente, United States Attorney, Gurney W. Grant, II, Assistant
United States Attorney, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
James H. Wilkins pled guilty, pursuant to a plea
agreement, to two counts of bank fraud, in violation of 18
U.S.C. § 1344 (2006), and possession of firearms by a felon, in
violation of 18 U.S.C. § 922(g)(1) (2006). He received a
sentence of 108 months’ imprisonment and filed a timely appeal.
The Government filed a motion to dismiss, contending
that Wilkins’s appeal is barred by the waiver contained in his
plea agreement. In response, Wilkins filed a motion to compel,
asserting that the Government breached the plea agreement “by
pursuing the obstruction enhancement without sufficient evidence
and advocating for the loss of acceptance of responsibility
points.” We deferred action on the Government’s motion pending
the submission of Appellant’s brief.
In his brief, Wilkins contends that the district court
erred in enhancing his offense level for obstruction of justice,
failing to reduce his offense level for acceptance of
responsibility, and failing to require the Government to move
for an additional reduction for acceptance of responsibility.
The Government’s brief reasserts its argument that Wilkins
waived his right to appeal; asserts that the district court
correctly increased Wilkins’s offense level for obstruction of
justice, precluding any offense level reduction for acceptance
of responsibility; and contends that it did not breach the plea
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agreement in failing to move for an additional reduction for
acceptance of responsibility. Because the primary issues raised
in Wilkins’s appeal are barred by the appellate waiver in his
plea agreement, we dismiss the appeal as to those issues. To
the extent Wilkins raises a claim not encompassed within the
scope of the appellate waiver, we affirm.
Whether a defendant effectively waived his right to
appeal pursuant to a plea bargain is an issue of law that is
reviewed de novo. United States v. Blick, 408 F.3d 162, 168
(4th Cir. 2005). Where the government seeks to enforce an
appeal waiver and the appellant does not contend that the
government is in breach of its plea agreement, a waiver will be
enforced if the record shows the waiver is valid and the
challenged issue falls within the scope of the waiver. Id. An
appeal waiver is valid if it is “the result of a knowing and
intelligent decision to forego the right to appeal.” United
States v. Broughton-Jones, 71 F.3d 1143, 1146 (4th Cir. 1995)
(internal quotation marks and citations omitted). Generally, if
the district court fully questions a defendant at his Fed. R.
Crim. P. 11 proceeding regarding the waiver of his right to
appeal, the waiver is both valid and enforceable. See United
States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005). However,
“we will not enforce an otherwise valid appeal waiver against a
defendant if the government breached the plea agreement
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containing that waiver.” United States v. Cohen, 459 F.3d 490,
495 (4th Cir. 2006).
After reviewing the record, we find the district court
fully questioned Wilkins regarding his intent to waive his right
to appeal, and Wilkins does not suggest otherwise. Therefore,
Wilkins’s waiver is both valid and enforceable. Additionally,
it is immediately apparent that two of the issues raised by
Wilkins on appeal – whether the district court erred in
enhancing the offense level for obstruction of justice and by
failing to reduce the offense level for acceptance of
responsibility — are within the scope of the appeal waiver. In
Wilkins’s plea agreement, he explicitly waived “the right to
appeal the conviction and any sentence within the statutory
maximum described above (or the manner in which that sentence
was determined).” As both these issues concern “the manner in
which [his] sentence was determined,” it is clear that, unless
the Government breached its plea agreement, these issues are
barred by Wilkins’s appeal waiver.
When a claim of breach of a plea agreement has been
preserved, we review the district court’s factual findings for
clear error and its “application of principles of contract
interpretation de novo.” United States v. Bowe, 257 F.3d 336,
342 (4th Cir. 2001). However, because Wilkins did not claim in
the district court that the Government had breached the plea
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agreement, our review is for plain error. Puckett v. United
States, 129 S. Ct. 1423, 1428 (2009).
Plea agreements are grounded in contract law, and both
parties should receive the benefit of their bargain. Bowe, 257
F.3d at 345. The Government breaches the plea agreement when a
promise it made to induce the plea goes unfulfilled.
Santobello v. New York, 404 U.S. 257, 262 (1971). Because of
constitutional and supervisory concerns, the Government is held
to a greater degree of responsibility for imprecision 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 300, 303. However, “[w]hile the
[G]overnment 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, 464-65 (4th Cir. 1986).
Wilkins asserts that the Government breached the plea
agreement by “pursuing the obstruction enhancement without
sufficient evidence” and “advocating for the loss of acceptance
of responsibility points.” Wilkins’s assertions are unsupported
by the record. The Government filed a lengthy chronology of
Wilkins’s statements to investigators, replete with instances in
which Wilkins purposefully misled FBI agents regarding the
whereabouts of various assets. The chronology compared
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statements made by Wilkins to investigators to those he made in
letters to a friend, instructing the friend to sell several
assets in order to prevent their seizure. This chronology was
incorporated by the probation officer into the presentence
report. Moreover, the plea agreement contained no agreement by
the Government to refrain from seeking an obstruction
enhancement.
Similarly, contrary to Wilkins’s assertions, the
Government’s agreement to move for an additional one-level
acceptance of responsibility reduction was dependent on his
qualifying for the two-level decrease of U.S. Sentencing
Guidelines Manual § 3E1.1(a) (May 1, 2008). Because the
district judge determined at sentencing that Wilkins did not
qualify for the two-level reduction because of his obstruction
of justice, the Government was not obligated to move for an
additional one-level decrease, and it did not breach the plea
agreement by failing to do so.
As the Government did not breach its plea agreement
with Wilkins, the issues of whether the district court erred in
denying Wilkins a two-point reduction for acceptance of
responsibility and increasing his offense level for obstruction
of justice are barred by the appeal waiver contained in his plea
agreement. Finally, it is unclear whether Wilkins intended to
raise the Government’s alleged breach of the plea agreement as a
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separate issue or merely a method by which to avoid enforcement
of the plea agreement. To the extent that Wilkins raises this
as a separate issue, we find that it is without merit, for the
reasons stated above. Accordingly, we grant the Government’s
motion to dismiss in part and affirm the judgment of the
district court. We dispense with oral argument because the
facts and legal contentions are adequately expressed in the
materials before the court and argument would not aid the
decisional process.
DISMISSED IN PART;
AFFIRMED IN PART
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