UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4495
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SULEMA VILLAGRANA LOPEZ,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:09-cr-00013-MR-14)
Submitted: November 4, 2010 Decided: December 10, 2010
Before GREGORY, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Heather Golias, LAW OFFICES OF HEATHER GOLIAS, New Haven,
Connecticut, for Appellant. Anne M. Tompkins, United States
Attorney, Richard Lee Edwards, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Sulema Villagrana Lopez appeals her conviction
pursuant to a plea agreement and seventy-eight month sentence
for one count of conspiracy to possess with intent to distribute
cocaine in violation of 21 U.S.C. §§ 845, 841(a)(1) (2006).
Finding no error, we affirm.
Lopez’s principal argument on appeal is that the
Government’s U.S. Sentencing Guidelines Manual § 5K1.1 (2009)
and 18 U.S.C. § 3582(c) (2006) motion for a downward departure
did not contain sufficient individualized facts about the level
of assistance Lopez offered for the district court to properly
weigh the degree of assistance given. From this premise, Lopez
argues that the Government committed misconduct in making a
flawed motion, her trial counsel was constitutionally
ineffective for failing to object to the allegedly defective
motion, and the Government breached the terms of the plea
agreement in making the motion as it did. * The Government has
filed a brief responding to Lopez’s claims and also challenging
the court’s jurisdiction over the appeal.
*
We note that the district court did grant the Government’s
downward departure motion, reducing Lopez’s offense level by one
level, and then sentencing her at the low end of her revised
advisory Guidelines range.
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I. Jurisdiction
Appeals of sentences are governed by 18 U.S.C. § 3742
(2006). United States v. Hill, 70 F.3d 321, 323-24
(4th Cir. 1995). Section 3742(a) confers jurisdiction on this
court to hear appeals of a sentence if it was: (1) imposed in
violation of law; (2) imposed as a result of an incorrect
application of the Guidelines; (3) greater than the sentence
specified in the applicable guideline range; (4) imposed for an
offense for which there is no sentencing guideline and is
plainly unreasonable. 18 U.S.C. § 3742(a); Hill, 70 F.3d at
323-24. To the extent, therefore, that an appeal is a challenge
to the amount of a downward departure, this court lacks
jurisdiction to hear that appeal. See Hill, 70 F.3d at 324.
Even in light of the Supreme Court’s decision in United
States v. Booker, 543 U.S. 220 (2005), this court lacks
authority to review a sentencing court’s decision to depart (and
to what degree) “unless the court failed to understand its
ability to do so.” United States v. Brewer, 520 F.3d 367, 371
(4th Cir. 2008).
The Government alleges that this appeal is an attempt
to evade this court’s jurisdictional limitations by couching a
challenge to a downward departure in the language of
prosecutorial misconduct and ineffective assistance of counsel.
We do not agree. Though Lopez’s ultimate goal may be to gain
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greater leniency from a future downward departure motion, the
court does have jurisdiction over the claims that she raises —
namely, that the sentence was imposed in violation of the law
because it was the result of prosecutorial misconduct and the
breach of a plea agreement.
II. Prosecutorial Misconduct
Lopez claims that the Government committed reversible
misconduct by failing to provide “individualized facts” in its
USSG § 5K1.1 and 18 U.S.C. § 3582(c) motion. Her claim is
essentially that had the Government proffered a more detailed
downward adjustment motion, the district court may have been
more willing to depart below the motion’s recommendation. To
succeed on a claim of prosecutorial misconduct, the defendant
must prove that the prosecution’s conduct was, in fact,
improper, and that she was deprived of a fair trial because of
the prejudicial conduct. United States v. Allen, 491 F.3d 178,
191 (4th Cir. 2007). Because Lopez did not raise this claim in
the district court, this court reviews for plain error,
affirming unless an error was made, the error was plain, and the
error affected Lopez’s substantial rights. See United States v.
Alerre, 430 F.3d 681, 689 (4th Cir. 2005).
Lopez cites to cases from our sister circuits that
have reviewed a district court’s ruling on a downward departure
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motion to ensure the court offered an adequate statement of
reasons explaining the degree of assistance provided. See,
e.g., United States v. Johnson, 33 F.3d 8 (5th Cir. 1994);
United States v. King, 53 F.3d 589 (3d Cir. 1995). The merits
of those decisions aside, they do not apply to this case. Even
if those cases represented the law of this circuit, they impose
a burden on the district court, not the prosecutor. We cannot,
therefore, find that any plain error was committed in the manner
in which the Government filed its downward departure motion.
III. Ineffective Assistance of Counsel
Lopez next argues that counsel was ineffective for
failing to object to the supposedly defective downward departure
motion. Claims of ineffective assistance of counsel generally
are not cognizable on direct appeal. United States v. King, 119
F.3d 290, 295 (4th Cir. 1997). Rather, to allow for adequate
development of the record, a defendant generally must bring her
claims in a 28 U.S.C.A. § 2255 (West Supp. 2010) motion. Id.;
United States v. Hoyle, 33 F.3d 415, 418 (4th Cir. 1994).
However, ineffective assistance claims are cognizable on direct
appeal if the record conclusively establishes ineffective
assistance. United States v. Richardson, 195 F.3d 192, 198
(4th Cir. 1999); King, 119 F.3d at 295.
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We have reviewed the record, and because it does not
clearly appear that the downward departure motion was inadequate
or otherwise defective, we decline to hold that ineffective
assistance of counsel appears conclusively on the face of the
record. Accordingly, this claim is not cognizable on direct
review.
IV. Breach of Plea Agreement
Lopez finally claims that the Government breached the
plea agreement. Her claim is based on her allegation that the
Government was required to present more individualized facts to
the sentencing court in its motion for a downward departure.
When the defendant raises an issue concerning a breach
of the plea agreement for the first time on appeal, the breach
is reviewed under a plain error standard. See United States v.
McQueen, 108 F.3d 64, 65-66 (4th Cir. 1997). In addition to the
requirements for plain error discussed above, the Supreme Court
has recognized that where “the effect of an alleged error is
. . . uncertain . . . a defendant cannot meet [her] burden of
showing that the error actually affected [her] substantial
rights.” Jones v. United States, 527 U.S. 373, 394-95 (1999).
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
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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, in enforcing agreements, the
government is held only to those promises it actually made.
United States v. Dawson, 587 F.3d 640, 645 (4th Cir. 2009).
Here, the plea agreement stated that if Lopez offered
assistance, “[t]he United States, in its sole discretion,
[would] determine whether the assistance has been substantial.”
The agreement continued, stating that “[u]pon a determination
that the defendant has rendered substantial assistance, the
government may make a motion pursuant to [USSG] § 5K1.1[.]” The
Government argues that the agreement does not, by its terms,
require them to file a downward departure motion, and that in
any event, the Government did file such a motion.
Again, without reaching the dubious claim that the
Government’s downward departure motion was insufficient, we
conclude that because the Government was not, in any event,
required to file a motion, no breach of the plea agreement
occurred.
Accordingly, we affirm the judgment of the district
court. We dispense with oral argument because the facts and
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legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
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