UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4170
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
RUFUS TYRONE NELSON, a/k/a Niborn, a/k/a Fat Cat,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., District Judge. (1:09-cr-00042-WO-1)
Submitted: March 31, 2011 Decided: April 7, 2011
Before WILKINSON, AGEE, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Richard S. Gottlieb, Richard D. Dietz, KILPATRICK STOCKTON, LLP,
Winston-Salem, North Carolina, for Appellant. John W. Stone,
Jr., Acting United States Attorney, Sandra J. Hairston,
Assistant United States Attorney, Greensboro, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Rufus Tyrone Nelson appeals from his convictions for
distribution of crack cocaine. On appeal, he argues that the
Government improperly threatened to breach the plea agreement if
he did not withdraw his objections to drug quantity in the
presentence report (PSR). He also contends that he received
ineffective assistance of counsel when his attorney did not file
timely objections to the PSR and failed to object to the
Government’s alleged breach of the plea agreement. Finding no
error, we affirm.
Nelson did not raise the plea agreement breach issue
in the district court, and this court’s review is therefore for
plain error. See United States v. McQueen, 108 F.3d 64, 65-66
(4th Cir. 1997). A plea agreement is breached when a government
promise that induced the plea goes unfulfilled. Santobello v.
New York, 404 U.S. 257, 262 (1971); United States v. Ringling,
988 F.2d 504, 506 (4th Cir. 1993). The burden lies with the
party asserting the breach to establish the breach by a
preponderance of the evidence. United States v. Snow, 234 F.3d
187, 189 (4th Cir. 2000); United States v. Dixon, 998 F.2d 228,
230 (4th Cir. 1993).
This court construes “plea agreements in accordance
with principles of contract law so that each party receives the
benefit of its bargain.” United States v. Holbrook, 368 F.3d
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415, 420 (4th Cir. 2004), vacated on other grounds, 545 U.S.
1125 (2005). However, “‘[b]ecause a defendant’s fundamental and
constitutional rights are implicated when he is induced to plead
guilty by reason of a plea agreement,’ the Court analyzes the
agreement ‘with greater scrutiny’ than would apply to a
commercial contract.” Id. The Government is bound only to
promises actually made to the defendant. United States v.
Peglera, 33 F.3d 412, 413 (4th Cir. 1994).
The Government has a “heightened responsibility
[extending] beyond the plea negotiation to all matters relating
to the plea agreement.” United States v. Wood, 378 F.3d 342,
348 (4th Cir. 2004). The Government’s statements at sentencing
may modify a plea agreement. See United States v. Martin, 25
F.3d 211, 217 (4th Cir. 1994). Further, during the plea
colloquy, all material terms of the agreement must be disclosed,
and the court must ascertain that the defendant understands each
of these terms. If the district court mischaracterizes a
material term that sufficiently alters the defendant’s
understanding of the terms of his plea, and the Government
acquiesces in that mischaracterization, the plea may be
modified. Wood, 378 F.3d at 349.
Here, the language of the plea agreement does not
suggest that the Government breached its promise, nor do the
transcripts of the plea colloquy and sentencing suggest a breach
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or threatened breach. The plea agreement contained no
stipulations or agreements concerning the base offense level,
other than if the offense level was 16 or greater, the
Government would recommend the third level of reduction for
acceptance of responsibility.
At the plea colloquy, the district court ascertained
that Nelson understood that he was pleading guilty to counts
three and four, both distribution counts. Although, construing
the proceedings in a light most favorable to the Defendant, the
stipulations of fact to support the plea may have been amended
orally at the plea hearing, the plea agreement remained silent
on relevant conduct and the calculation of drug quantity for
sentencing purposes. Therefore, the Government’s conduct at
sentencing does not reflect a breach of the written agreement.
While the Government stated at sentencing that it would
recommend that Nelson not be given a reduction for acceptance of
responsibility if he persisted in his objections to the PSR, the
Government never made such a recommendation. Even if it had,
the plea agreement did not preclude such a recommendation. In
any event, Nelson withdrew his objections to the presentence
report after conferring with counsel during a recess.
Nelson pled guilty to offenses involving 22.3 grams of
crack cocaine, thereby exposing himself to a potential sentence
of five to forty years. See 21 U.S.C. § 841(b)(1)(B) (2006).
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His sentence falls within this statutory range. Nelson failed
to meet his burden of showing that the Government breached the
plea agreement either by threatening to withdraw the recommended
decrease for acceptance of responsibility or by permitting his
base offense level to be calculated based on conduct in the
dismissed counts. The plea agreement contained no express or
implied promise respecting the drug quantity calculation, and
neither the plea colloquy or the sentencing transcripts reflects
anything to the contrary that would constitute a modification of
the agreement. Therefore, there is no plain error.
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 his
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.
To demonstrate ineffective assistance, a defendant
must show that his “counsel’s representation fell below an
objective standard of reasonableness,” and that the error was
“prejudicial to the defense” such that “there is a reasonable
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probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.”
Strickland v. Washington, 466 U.S. 668, 688, 692, 694 (1984).
In the context of a plea agreement, where a defendant claims
ineffective assistance, the prejudice prong is satisfied where
the defendant shows that “there is a reasonable probability
that, but for counsel’s errors, he would not have pleaded guilty
and would have insisted on going to trial.” Hill v. Lockhart,
474 U.S. 52, 59 (1985).
Here, Nelson cannot demonstrate that, but for
counsel’s alleged errors, the result would have been different.
Although Nelson’s counsel did not make timely objections to the
presentence report, the district court stated that it would
consider the objections. Nelson, however, chose to withdraw the
objections. As discussed above, the Government’s statement that
it may not recommend a third level of reduction if Nelson
continued to raise objections to drug quantity was not a breach
of the plea agreement and, therefore, failure by counsel to
raise such an objection does not conclusively appear on the
record to be an act of ineffective assistance of counsel.
We therefore affirm the judgment. We dispense with
oral argument because the facts and legal contentions are
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adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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