UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4188
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
THOMAS PATRIC BOGGS,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Lynchburg. Norman K. Moon, Senior
District Judge. (6:13-cr-00015-NKM-1)
Submitted: September 30, 2014 Decided: October 3, 2014
Before DUNCAN and WYNN, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Larry W. Shelton, Federal Public Defender, Fay F. Spence, First
Assistant Federal Public Defender, Roanoke, Virginia, for
Appellant. Timothy J. Heaphy, United States Attorney, Jean B.
Hudson, Assistant United States Attorney, Charlottesville,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Thomas Patric Boggs appeals from his 57-month sentence
imposed pursuant to his guilty plea to wire fraud. On appeal,
he contends that the Government breached his plea agreement by
failing to move for an adjustment for acceptance of
responsibility under U.S. Sentencing Guidelines Manual § 3E1.1
(2013). Finding no breach, we affirm.
Boggs’ plea agreement provided that, while the
Government believed that the amount of loss for Guidelines
purposes exceeded $200,000, Boggs reserved the right to argue
that the loss amount was less than $200,000. In addition, the
Government agreed to recommend that the district court grant a
reduction for acceptance of responsibility if Boggs complied
with his obligations under the plea agreement and accepted
responsibility for his conduct. Boggs stipulated that, if he
failed to accept responsibility for his conduct, he would not
receive credit for acceptance of responsibility.
The probation officer prepared a presentence report
(“PSR”) concluding that Boggs had not satisfied the requirements
for an adjustment for acceptance of responsibility.
Specifically, the PSR relied on a statement submitted by Boggs,
through counsel. In that statement, Boggs stated the he “did
not mean to commit a fraud.” Rather, he “just didn’t realize
that [the victim’s] continued investment in our business was
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contingent on his belief that he had already made a profit.”
The PSR concluded that Boggs did not truthfully admit or had
falsely denied the conduct comprising the offense of conviction
and his relevant conduct.
At sentencing, Boggs challenged both the loss amount
and the failure to give an acceptance of responsibility
reduction. As to the loss argument, Boggs averred that the
amount of loss should not encompass funds that were actually
invested in Dynamo, a company owned by Boggs’ wife. Boggs
argued that, while he did not intend to defraud the victim at
the outset of the scheme, he was nonetheless guilty because he
did not do with the money what he was supposed to do. Boggs
distanced himself from the statement he gave the probation
officer, and his counsel stated that, if the written statement
submitted by Boggs to the probation officer did not accept
complete responsibility, that was her fault as she had worded
the statement.
After hearing testimony from the victim, Boggs, and
others, the district court ruled that, while Boggs had a right
under the plea agreement to argue and put on a truthful case
about the amount of loss, he did not have a right to commit
perjury and put on a false case. The court found Boggs’
statement to the probation officer to be “unbelievable” and
noted that the court knew Boggs’ counsel “well enough to know
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[that she] didn’t misrepresent . . . anything.” The court
overruled Boggs’ objections, finding that the loss amount was
over $200,000, that Boggs’ objections to this loss amount and
his relevant conduct were frivolous, and that Boggs was not
entitled to an acceptance of responsibility adjustment. Boggs’
Guidelines range was 46 to 57 months in prison. The court
imposed a sentenced of 57 months.
Boggs now asserts that his admissions should have been
sufficient to satisfy the requirements for acceptance of
responsibility. Because he reserved the right to contest the
loss amount, he contends that his arguments that part of the
money was legitimately invested in Dynamo or elsewhere should
not have excused the Government from moving for an acceptance of
responsibility credit. Boggs also argues that the acceptance of
responsibility provision in the plea agreement is ambiguous as
there are no specifics as to how to decide whether or not Boggs
properly accepted responsibility.
Plea agreements are grounded in contract law, United
States v. Chase, 466 F.3d 310, 314 (4th Cir. 2006), and the
Government breaches a plea agreement when a promise it made to
induce the plea goes unfulfilled. See Santobello v. New York,
404 U.S. 257, 262 (1971). When interpreting a plea agreement,
we enforce the agreement’s “plain language in its ordinary
sense.” United States v. Jordan, 509 F.3d 191, 195 (4th Cir.
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2007) (internal quotation marks omitted). Where the terms of an
agreement are ambiguous, they must be construed against the
Government. United States v. Harvey, 791 F.2d 294, 303 (4th
Cir. 1986). However, the Government will not be bound to
promises it did not make. United States v. Fentress, 792 F.2d
461, 464-65 (4th Cir. 1986). Boggs bears the burden of
establishing a breach of his plea agreement by a preponderance
of the evidence. United States v. Snow, 234 F.3d 187, 189 (4th
Cir. 2000).
As noted by the district court and the probation
officer, Boggs’ frivolous objections to the loss amount, his
written statement, and his testimony at sentencing all exhibited
an effort to justify or explain away at least part of his
criminal conduct, and were thus inconsistent with an acceptance
of responsibility. See United States v. May, 359 F.3d 683, 694
(4th Cir. 2004) (efforts to minimize role in offense and explain
away conduct are inconsistent with acceptance of
responsibility). Contrary to Boggs’ assertions, the Government
did not withhold its recommendation based on Boggs’ reserved
right to challenge the loss amount. Instead, Boggs’ failure to
honestly and fully accept responsibility released the Government
from any requirement to make such a recommendation. Boggs’
actions were inconsistent with acceptance of responsibility, and
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he did far more than simply object in good faith to the loss
amount.
Moreover, the plea agreement’s treatment of the
acceptance of responsibility reduction was not ambiguous: the
Government’s agreement to move for a reduction was based upon
the requirement that Boggs “accept responsibility for [his]
conduct.” Boggs’ attempts to minimize his culpability by
stating repeatedly that he did not intend to defraud the victim
at the outset of the scheme, without presenting any credible
evidence to support his assertions, undermined any argument that
Boggs appropriately accepted responsibility. Moreover, Boggs
failed to present any credible evidence to contradict the facts
presented in the PSR that Boggs made “no legitimate investments”
with the victim’s money. Finally, both the probation officer
and the district court easily concluded that Boggs failed to
accept responsibility, which is further evidence the term is not
ambiguous.
While Boggs’ argument finds support in United
States v. Peglera, 33 F.3d 412 (4th Cir. 1994) (holding that
objecting to Guidelines’ calculations as specifically reserved
in the plea agreement is not a breach of the plea agreement,
even if the objection is overruled, and thus, Government is not
released from obligation under the agreement to move for
acceptance of responsibility), we conclude that the cases are
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distinguishable. First, Boggs did more than simply argue the
loss amount in the manner he predicted at the Rule 11 hearing.
While his arguments at sentencing were all arguably related to
the loss issue, Boggs also denied fraudulent intent for a large
portion of his conduct. At his plea hearing, Boggs averred that
he would be presenting documentary evidence showing that the
victim authorized investment of some of his funds in Dynamo and
authorized some of Boggs’ expenditures. However, instead, Boggs
presented only one piece of documentary evidence (that was of
very limited relevance) 1 and then proceeded to contend that he
lacked fraudulent intent as to a substantial portion of the
victim’s funds. This testimony contradicted the PSR and the
Government witnesses at sentencing and was found to be not
credible by the district court. As Boggs’ conduct exceeded his
reserved rights, Peglera does not control this case. 2
1
Even if some of the victim’s money was sent to Dynamo,
there is no evidence as to whether that money was “invested”
with Dynamo or instead whether the payments were a loan, a gift,
or used to pay personal expenses. Moreover, it appears that,
even without the disputed Dynamo payments, the loss was over
$200,000, rendering Boggs’ loss argument entirely frivolous.
2
In addition, Peglera’s plea agreement was stricter than
Boggs’. Peglera’s agreement required a three-level acceptance
of responsibility reduction absent “changed circumstances due to
defendant’s conduct.” Peglera, 33 F.3d at 413. In contrast,
Boggs’ acceptance of responsibility reduction was conditional on
Boggs’ acceptance of responsibility for his conduct.
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Based on the foregoing, we find that Boggs failed to
accept responsibility for his criminal and relevant conduct, and
the Government, therefore, did not breach the plea agreement.
Accordingly, we affirm Boggs’ sentence. 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.
AFFIRMED
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