UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4074
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMES THOMAS WEBB,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
Chief District Judge. (5:12-cr-00301-D-1)
Submitted: January 30, 2015 Decided: February 9, 2015
Before SHEDD and THACKER, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Anne M. Hayes, Cary, North Carolina, for Appellant. Jennifer P.
May-Parker, Assistant United States Attorney, Kristine L. Fritz,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
James Thomas Webb seeks to appeal his conviction and
sentence after pleading guilty to conspiracy to commit bank
fraud and wire fraud. The district court sentenced Webb at the
high end of his advisory Guidelines range to 327 months in
prison, five years of supervised release, and restitution.
Webb’s attorney has filed a brief under Anders v. California,
386 U.S. 738 (1967), asserting there are no meritorious grounds
for appeal but raising the issues of whether Webb’s appeal
waiver is enforceable, and whether the Government breached the
plea agreement. Webb has filed a pro se supplemental brief
arguing that the Government breached the plea agreement, the
district court erred in calculating his Guidelines range, and
the Government failed to provide timely and complete discovery.
The Government has moved to dismiss the appeal based on the
appeal waiver. We grant the Government’s motion to dismiss the
appeal in part, and we affirm the district court’s judgment.
“Plea bargains rest on contractual principles, and
each party should receive the benefit of its bargain.” United
States v. Blick, 408 F.3d 162, 173 (4th Cir. 2005) (citation and
internal quotations omitted). “A defendant may waive the right
to appeal his conviction and sentence so long as the waiver is
knowing and voluntary.” United States v. Davis, 689 F.3d 349,
354 (4th Cir. 2012) (citing United States v. Marin, 961 F.2d
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493, 496 (4th Cir. 1992)). We review the validity of an appeal
waiver de novo, and we “will enforce the waiver if it is valid
and the issue appealed is within the scope of the waiver.” Id.
at 354-55 (citing Blick, 408 F.3d at 168).
We have reviewed the plea agreement and the Fed. R.
Crim. P. 11 hearing, and we conclude that Webb’s appeal waiver
was knowing and voluntary. On appeal, Webb contends that the
Government breached the plea agreement at sentencing and that
this issue falls outside the scope of the waiver. Moreover, he
contends that “the appeal waiver should not be enforced because
its application is conditioned on the district court’s
imposition of a sentence within the sentencing guidelines range,
and the district court made remarks indicating that it chose the
327-month sentence without relying on the applicable range.”
“A defendant’s waiver of appellate rights cannot
foreclose an argument that the government breached the plea
agreement.” United States v. Dawson, 587 F.3d 640, 644 n.4 (4th
Cir. 2009) (citing United States v. Cohen, 459 F.3d 490, 495
(4th Cir. 2006)). Moreover, “we will not enforce an otherwise
valid appeal waiver against a defendant if the government
breached the plea agreement containing that waiver.” Cohen, 459
F.3d at 495 (citing Blick, 408 F.3d at 168); see also United
States v. Lewis, 633 F.3d 262, 271 n.8 (4th Cir. 2011) (citing
Dawson, 587 F.3d at 644 n.4; Cohen, 459 F.3d at 495). However,
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where a defendant alleges a breach by the Government but “the
record in [the] case does not support [the defendant’s] claim,”
we “will not invalidate [the defendant’s] appeal waiver based on
[the unsupported] allegations.” Cohen, 459 F.3d at 495.
Based on our review of the record, we conclude that
Webb’s claim that the Government breached the plea agreement is
not supported by the record. Moreover, we conclude that Webb’s
appeal waiver is valid and enforceable. While a valid appeal
waiver does not always preclude a defendant from challenging
certain errors, Webb has not raised any such errors. See United
States v. Copeland, 707 F.3d 522, 530 (4th Cir. 2013); United
States v. Thornsbury, 670 F.3d 532, 539 (4th Cir. 2012).
Because the sentencing issue Webb seeks to raise on
appeal falls within the scope of the waiver, we dismiss the
appeal as to that claim. As for Webb’s claim that the
Government failed to provide timely and complete discovery, we
conclude that this claim is unsupported by the record and
without merit. Moreover, in accordance with Anders, we have
reviewed the record for any potentially meritorious issues that
might fall outside the scope of the waiver and have found none.
Accordingly, we grant the Government’s motion to
dismiss the appeal in part, deny Webb’s motion to transmit
sentencing exhibits as moot, and affirm the district court’s
judgment. This court requires that counsel inform his or her
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client, in writing, of his or her right to petition the Supreme
Court of the United States for further review. If the client
requests that a petition be filed, but counsel believes that
such a petition would be frivolous, then counsel may move in
this court for leave to withdraw from representation. Counsel’s
motion must state that a copy thereof was served on the client.
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 IN PART;
AFFIRMED IN PART
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