UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-5228
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DWAYNE MITCHELL LITTLEJOHN, a/k/a Manson,
Defendant - Appellant.
No. 10-4013
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DANIEL LEE REED, a/k/a Heavy D,
Defendant - Appellant.
Appeals from the United States District Court for the Western
District of North Carolina, at Bryson City. Martin K.
Reidinger, District Judge. (2:08-cr-00036-MR-DLH-2; 2:08-cr-
00036-MR-3)
Submitted: March 10, 2011 Decided: April 11, 2011
Before GREGORY, SHEDD, and AGEE, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Claire J. Rauscher, Executive Director, Matthew R. Segal,
Fredilyn Sison, Assistant Federal Defenders, Asheville, North
Carolina; Eric A. Bach, LAW OFFICES OF ERIC A. BACH, Charlotte,
North Carolina, for Appellants. Anne M. Tompkins, United States
Attorney, Amy E. Ray, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Dwayne Mitchell Littlejohn and Daniel Lee Reed contest
the restitution amount imposed pursuant to the Mandatory Victims
Restitution Act as part of their sentences. Littlejohn pleaded
guilty to second degree murder and aiding and abetting second
degree murder, in violation of 18 U.S.C. §§ 2, 1111, 1153
(2006). Reed pleaded guilty to voluntary manslaughter and
aiding and abetting voluntary manslaughter, in violation of 18
U.S.C. §§ 2, 1112, 1153 (2006). Littlejohn’s plea agreement
provided that the Government would recommend a sentence at the
low end of the Sentencing Guidelines range. Littlejohn argues
that the Government breached the plea agreement when it
discussed its position on the facts of the murder at sentencing
and that the breach relieves him of the waiver of his right to
appeal his sentence. Both defendants contest the district
court’s calculation of future lost wages as part of the
restitution portion of their sentences.
A defendant alleging the Government’s breach of a plea
agreement bears the burden of establishing that breach by a
preponderance of the evidence. United States v. Snow, 234 F.3d
187, 189 (4th Cir. 2000). Where a party raised the issue of
whether the plea agreement was breached in the district court,
this court reviews the district court’s factual findings for
clear error and its principles of contract interpretation de
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novo. United States v. Bowe, 257 F.3d 336, 342 (4th Cir. 2001)
(citing Snow, 234 F.3d at 189). Where, however, a party failed
to raise the issue of whether the plea agreement was breached in
the district court, this court reviews the issue for plain
error. United States v. McQueen, 108 F.3d 64, 65-66 & n.1 (4th
Cir. 1997) (citing United States v. Fant, 974 F.2d 559, 565 (4th
Cir. 1992)). Thus, the appellant must not only show that the
plea agreement was breached, but also that “the breach was ‘so
obvious and substantial that failure to notice and correct it
affect[ed] the fairness, integrity or public reputation of the
judicial proceedings.’” McQueen, 108 F.3d at 66 & n.4 (quoting
Fant, 974 F.2d at 565).
“[W]hen a plea rests in any significant degree on a
promise or agreement of the prosecutor, so that it can be said
to be part of the inducement or consideration, such promise must
be fulfilled.” Santobello v. New York, 404 U.S. 257, 262
(1971). “It is well-established that the interpretation of plea
agreements is rooted in contract law, and that ‘each party
should receive the benefit of its bargain.’” United States v.
Peglera, 33 F.3d 412, 413 (4th Cir. 1994) (quoting United
States v. Ringling, 988 F.2d 504, 506 (4th Cir. 1993)). “A
central tenet of contract law is that no party is obligated to
provide more than is specified in the agreement itself.”
Peglera, 33 F.3d at 413. “Accordingly, in enforcing plea
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agreements, the government is held only to those promises that
it actually made,” and “the government’s duty in carrying out
its obligations under a plea agreement is no greater than that
of ‘fidelity to the agreement.’” Id. (quoting United States v.
Fentress, 792 F.2d 461, 464 (4th Cir. 1986)); see also United
States v. Benchimol, 471 U.S. 453, 456 (1985) (holding “it was
error for the Court of Appeals to imply as a matter of law a
term which the parties themselves did not agree upon” by
requiring recommendation to be made “enthusiastically”).
Littlejohn has failed to establish that the Government
breached its plea agreement. Under the agreement, the
Government was obligated to recommend a sentence at the low end
of the Sentencing Guidelines range. We conclude that the
Government satisfied its obligation to recommend a sentence at
the low end of the Guidelines range. The Government clearly
stated twice that it was recommending a sentence at the low end
of the range. Although the Government explained its position on
why the Government extended a plea to Littlejohn for second
degree murder, it did not follow with a sentencing
recommendation of anything other than the low end of the
Guidelines range. Moreover, Littlejohn cannot show that the
district court would have imposed a lower sentence if the
Government had not revealed that it believed that the murder was
premeditated by at least one of the three co-defendants but
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that, because the evidence against any of the Defendants was
weak, it agreed to Littlejohn’s guilty plea to second degree
murder with the concession that it would also recommend a
sentence at the low end of the Guidelines range.
Despite the waiver of appellate rights in their plea
agreements, Littlejohn and Reed challenge the restitution
portion of their sentence on appeal. Although restitution
allows a victim to recover losses that may otherwise be remedied
through a civil action, it remains an aspect of a criminal
defendant’s sentence. See United States v. Cohen, 459 F.3d 490,
496 (4th Cir. 2006). Therefore, a defendant who knowingly and
explicitly agrees to a waiver of all rights to appeal his or her
sentence has generally waived the right to appeal restitution.
Id. at 1143, 1147 (4th Cir. 1995).
However, an otherwise valid waiver does not
necessarily bar appellate review of every sentence. See United
States v. Broughton-Jones, 71 F.3d 1143, 1147 (4th Cir. 1995).
A defendant who waives his right to appeal does not
subject himself to being sentenced entirely at the
whim of the district court. For example, a defendant
could not be said to have waived his right to
appellate review of a sentence imposed in excess of
the maximum penalty provided by statute or based on a
constitutionally impermissible factor such as race.
Id. (emphasis omitted; internal quotation marks and alteration
omitted). Federal courts have no inherent authority to order
restitution, but must rely on a statutory source. See Cohen,
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459 F.3d at 498. Thus, because a restitution order exceeding
the authority statutorily granted a court “is no less illegal
than a sentence of imprisonment that exceeds the statutory
maximum, appeals challenging the legality of restitution orders
are similarly outside the scope of a defendant’s otherwise valid
appeal waiver.” Id. (internal quotation marks omitted).
Appellants contend that the district court’s order of
restitution for lost future wages is based upon speculation and
devoid of factual support. Therefore, they argue that the court
erred in awarding this type of restitution. As this issue does
not concern the authority of the court to impose restitution,
and Appellants acknowledge the existence of such authority by
not challenging the future per capita distributions, the appeal
of this issue is within the scope of Appellants’ waivers of
appeal. Appellants challenge the calculation and amount of lost
future income imposed; they do not, however, contend that their
appeal waivers were anything other than knowingly and
voluntarily entered. Further, it is apparent from the record
that the district court fully questioned each appellant at his
respective Fed. R. Crim. P. 11 hearing.
Because Appellants’ waivers of appeal were validly
entered and enforceable, and the Government did not breach
Littlejohn’s plea agreement, we conclude that the restitution
issue they seek to raise on appeal is barred by the appeal
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waivers contained in Appellants’ respective plea agreements.
Accordingly, we dismiss the appeals. 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.
DISMISSED
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