UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4325
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BENJAMIN WEATHERLY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Anthony John Trenga,
District Judge. (1:12-cr-00477-AJT-2)
Submitted: October 31, 2013 Decided: November 7, 2013
Before MOTZ, KING, and WYNN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Edwin S. Booth, SHUTTLEWORTH, RULOFF, SWAIN, HADDAD & MORECOCK,
PC, Virginia Beach, Virginia, for Appellant. Neil H. MacBride,
United States Attorney, Maya D. Song, Kosta S. Stojilkovic,
Assistant United States Attorneys, Alexandria, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Benjamin Weatherly seeks to appeal the 120-month
sentence imposed after he pled guilty, pursuant to a plea
agreement, to one count of conspiracy to commit bank fraud, in
violation of 18 U.S.C. §§ 1344, 1349 (2012), and one count of
aggravated identity theft, in violation of 18 U.S.C.
§ 1028A(a)(1) (2012). On appeal, Weatherly argues that the
Government breached the plea agreement by arguing in support of
an enhancement of his offense level for use of sophisticated
means, pursuant to U.S. Sentencing Guidelines Manual (USSG)
§ 2B1.1(b)(10)(C) (2012). The Government responds that it did
not breach the plea agreement, and that Weatherly’s appeal
should be dismissed based on the waiver of appellate rights
included in the plea agreement.
The plea agreement included the parties’ agreement
regarding the base offense level and enhancements for intended
loss, number of victims, and obstruction of justice. The
agreement further noted that the parties would litigate the
applicability of a two-level enhancement for a leadership role
pursuant to USSG § 3B1.1, but did not mention the applicability
of an enhancement for sophisticated means or any other
Guidelines provisions. In the presentence investigation report,
the probation officer recommended the base offense level and
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enhancements recommended in the plea agreement, and also
recommended enhancements for use of sophisticated means,
possession or use of an authentication device, and leadership
role. USSG §§ 2B1.1(b)(10)(C), 2B1.1(b)(11)(A), 3B1.1(b).
Weatherly objected to essentially the entire offense level
calculation. The Government agreed that the enhancement for an
authentication device should not apply, but requested a sentence
within the Guidelines range determined after deleting that
enhancement. The district court sustained Weatherly’s objection
to the authentication device enhancement, overruled his other
objections, and sentenced Weatherly to ninety-six months of
imprisonment on the conspiracy count and twenty-four months
consecutive on the identity theft count, for a total sentence of
120 months of imprisonment.
On appeal, Weatherly argues that the plea agreement
contemplated all Guidelines provisions and enhancements, and
because it did not mention an enhancement for use of
sophisticated means, the Government breached the agreement by
arguing in support of the enhancement. Because Weatherly did
not assert before the district court that the Government
breached the plea agreement, this court’s review is for plain
error. Puckett v. United States, 556 U.S. 129, 133-34 (2009)
(holding Fed. R. Crim. P. 52(b) plain error rule applies to
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claim of breach of plea agreement). Accordingly, Weatherly must
show not only that the Government plainly breached his plea
agreement, but also that he was prejudiced by the error and that
“the breach was so obvious and substantial that failure to
notice and correct it affect[s] the fairness, integrity or
public reputation of the judicial proceedings.” United
States v. McQueen, 108 F.3d 64, 66 (4th Cir. 1997) (internal
quotation marks and alteration omitted).
“The interpretation of plea agreements is guided by
contract law, and parties to the agreement should receive the
benefit of their bargain.” Id. This court “appl[ies] the plain
meaning of the agreement’s terms with the goal of providing each
party the benefit of its bargain.” United States v. Weon, 722
F.3d 583, 588 (4th Cir. 2013). The Government breaches a plea
agreement when a promise it made to induce the plea remains
unfulfilled. Santobello v. New York, 404 U.S. 257, 262 (1971).
But, “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.” United States v. Dawson, 587 F.3d
640, 645 (4th Cir. 2009) (internal quotation marks and citation
omitted); see also United States v. Davis, 689 F.3d 349, 353
(4th Cir. 2012) (“Davis’s claim for breach fails insofar as he
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seeks the benefit of a promise that the government never
made.”).
Our review of the record leads us to conclude that the
Government did not breach the plea agreement. The section of
the agreement containing the Guidelines recommendations
specifically referred to the provision in Rule 11 regarding
nonbinding sentence recommendations. Fed. R. Crim. P.
11(c)(1)(B). Further, the agreement contained no language
precluding the parties from arguing the applicability of other
Guidelines provisions that might be recommended by the probation
officer. Finally, the agreement stated that it was the entire
agreement between the parties and that “[a]ny modification of
this plea agreement shall be valid only as set forth in writing
in a supplemental or revised plea agreement signed by all
parties.”
When the government seeks to enforce an appeal waiver
and did not breach its obligations under the plea agreement, the
court will enforce the waiver if the defendant’s waiver was
knowing and intelligent and the issues raised on appeal fall
within the scope of the agreement. United States v. Blick, 408
F.3d 162, 168-69 (4th Cir. 2005). The waiver in this case
provided that Weatherly waived “the right to appeal the
conviction and any sentence within the statutory maximum . . .
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(or the manner in which that sentence was determined) on the
grounds set forth in Title 18, United States Code, Section 3742
or on any ground whatsoever.”
This court reviews the validity of an appellate waiver
de novo. United States v. Manigan, 592 F.3d 621, 626 (4th Cir.
2010). To determine whether an appeal waiver is knowingly and
intelligently entered, the court examines the totality of the
circumstances, including the defendant’s experience, conduct,
educational background, and familiarity with the agreement’s
terms. United States v. General, 278 F.3d 389, 400 (4th Cir.
2002).
In this case, Weatherly does not assert that the
appellate waiver was not knowing or intelligent, or that his
agreement to the waiver was in any way involuntary. Our review
of the plea hearing transcript reveals that the district court
confirmed that Weatherly was competent to plead guilty, and that
he had discussed the plea agreement with counsel before signing
it. The court specifically questioned Weatherly about the
appellate waiver and confirmed that he understood he was waiving
his right to appeal by entering the agreement. Because the
district court sentenced Weatherly within the applicable
statutory maximums, and he raises no claim outside the scope of
the waiver, it is valid and enforceable.
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According, we dismiss Weatherly’s appeal. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before this court and
argument would not aid the decisional process.
DISMISSED
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