UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5009
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MELVIN REGINALD HOLDEN,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan,
Chief District Judge. (5:08-cr-00050-FL-1)
Submitted: April 14, 2011 Decided: April 29, 2011
Before KEENAN and WYNN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
George B. Currin, CURRIN & CURRIN, Raleigh, North Carolina, for
Appellant. George E. B. Holding, United States Attorney,
Jennifer P. May-Parker, Kristine L. Fritz, Assistant United
States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Melvin Reginald Holden pled guilty to possession of a
firearm after being convicted of a felony, in violation of 18
U.S.C. § 922(g)(1) (2006). Before sentencing Holden, the
district court granted the Government’s motion for downward
departure based upon Holden’s substantial assistance, and
sentenced Holden to a term of fifty months’ imprisonment. On
appeal, Holden argues that, upon execution of the plea
agreement, statements he made one year before he executed the
plea agreement became protected and that the use of his
statements to enhance his sentence based upon the number of
firearms involved in the crime constituted a breach of the plea
agreement. He also asserts that counsel rendered ineffective
assistance by failing to object to the use of the statements.
We affirm.
Because Holden did not object to the use of his
pre-plea statements at sentencing, we review for plain error
whether the Government breached the plea agreement. United
States v. Lewis, 633 F.3d 262, 267 (4th Cir. 2011) (stating
standard of review). To establish plain error, Holden must
demonstrate “the existence of (1) an error, (2) that is plain,
(3) that affects the defendant’s substantial rights, and
(4) that seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” United States v. Dawson,
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587 F.3d 640, 645 (4th Cir. 2009) (citing Puckett v. United
States, 129 S. Ct. 1423, 1428 (2009)).
When, as here, the parties dispute the interpretation
of language in the plea agreement, we apply basic contract
principles. Lewis, 633 F.3d at 269; United States v. Ringling,
988 F.2d 504, 506 (4th Cir. 1993). “‘[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 [to plead guilty], such promise must be
fulfilled.’” Lewis, 633 F.3d at 269 (quoting Santobello v. New
York, 404 U.S. 257, 262 (1971)). “The government is only bound,
however, by the promises that were actually made in inducing a
guilty plea.” Id. In analyzing a plea agreement, this court
holds “the government . . . to a greater degree of
responsibility than the defendant . . . for imprecisions or
ambiguities in plea agreements.” Id. (internal quotation marks
omitted).
With these standards in mind, we have reviewed the
record on appeal and conclude that the Government did not breach
the plea agreement. The agreement provided that incriminating
statements shall not be used to determine Holden’s advisory
Guidelines range, except as provided by U.S. Sentencing
Guidelines Manual § 1B1.8 (2003). Section 1B1.8, however,
permits consideration of information that was “known to the
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government prior to entering into the cooperation agreement.”
USSG § 1B1.8(b)(1). Here, more than one year before Holden
signed the plea agreement, he told authorities about his
involvement in the sale of four handguns. Thus, the use of
Holden’s pre-plea statements at sentencing did not violate the
plea agreement, and Holden fails to demonstrate error — plain or
otherwise.
Turning to the ineffective assistance of counsel
claim, the record indicates that counsel had no meritorious
objection to the use of Holden’s pre-plea statements at
sentencing. Holden therefore has failed to show, as he must,
attorney error that is evident from the face of the record.
United States v. Baptiste, 596 F.3d 214, 216 n.1 (4th Cir. 2010)
(providing standard). We therefore decline to address this
claim on direct appeal.
Accordingly, we affirm the judgment of the district
court. 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.
AFFIRMED
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