UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4683
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GREGORY D. ANDERSON,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Max O. Cogburn, Jr.,
District Judge. (3:10-cr-00260-MOC-DSC-1)
Submitted: September 30, 2015 Decided: October 21, 2015
Before SHEDD, DUNCAN, and KEENAN, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Ross Hall Richardson, Executive Director, Joshua B. Carpenter,
FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville,
North Carolina, for Appellant. Jill Westmoreland Rose, Acting
United States Attorney, Anthony J. Enright, Assistant United
States Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gregory D. Anderson pled guilty, pursuant to a conditional
plea agreement, to conspiracy to defraud the United States, in
violation of 18 U.S.C. § 371 (2012); bank fraud, in violation of
18 U.S.C. § 1344 (2012); making false statements to the
Department of Housing and Urban Development, in violation of 18
U.S.C. § 1010 (2012); money laundering to conceal the proceeds
of illegal activities, in violation of 18 U.S.C. § 1956
(a)(1)(B)(i) (2012); and forcibly resisting arrest inflicting
injury to persons assisting the United States, in violation of
18 U.S.C. § 111 (2012). On appeal, Anderson argues that the
district court erred in interpreting a preindictment proffer
agreement, 1 in finding that the Government did not commit an
anticipatory breach of the proffer agreement, and in using
information obtained from the proffer agreement at sentencing.
The Government asserts that Anderson’s waiver of appellate
rights in the plea agreement bars some of his claims. We affirm
in part and dismiss in part.
First, we consider Anderson’s argument that the Government
committed an anticipatory breach of the proffer agreement by
1See United States v. Lopez, 219 F.3d 343, 345 n.1 (4th
Cir. 2000) (discussing proffer agreements generally).
2
reading him his Miranda 2 rights and presenting him an advice—of—
rights form prior to his second proffer session. Anderson
argues that this amounts to an anticipatory breach of the
proffer agreement because the Government’s actions contradicted
its central obligations under the proffer agreement — that his
statements would not be used against him in court.
Whether a proffer agreement has been breached is “a
question of law that we review de novo.” Lopez, 219 F.3d at
346. “[A] proffer agreement operates like a contract;
accordingly, we examine its express terms to determine whether
[a party] is in breach.” United States v. Gillion, 704 F.3d
284, 292 (4th Cir. 2012). We rely on principles of contract law
in interpreting criminal agreements but “hold[] the Government
to a greater degree of responsibility than the defendant . . .
for imprecisions or ambiguities.” United States v. Harvey, 791
F.2d 294, 300 (4th Cir. 1986). Under contract law, an
anticipatory breach occurs when “one party to a contract
renounces its future contractual obligations, in essence
promising ahead of time not to perform when performance comes
due.” Homeland Training Ctr., LLC v. Summit Point Auto.
Research Ctr., 594 F.3d 285, 292 (4th Cir. 2010).
2 Miranda v. Arizona, 384 U.S. 436 (1966).
3
We conclude that the Government did not commit an
anticipatory breach of the proffer agreement. The record shows
that the Government’s agents answered Anderson’s questions about
the effects of the Miranda warnings on the proffer agreement,
that Anderson previously communicated a desire to be represented
by counsel, that the agents were concerned when Anderson
appeared at the proffer meeting without counsel, and that the
agents’ motivations in advising Anderson of his rights were to
ensure he understood his right to have counsel present.
Moreover, the terms of the proffer agreement expressly provided
circumstances in which Anderson’s statements could be used
against him in court, and, thus, the agents’ decision to provide
a Miranda warning and an advice—of—rights form did not reject
the Government’s central obligations under the proffer
agreement.
Next, we consider the Government’s contention that the
remainder of Anderson’s appeal is barred by the waiver of
appellate rights in his plea agreement. Anderson argues that we
should consider the merits of his remaining arguments because
the district court expanded the scope of the appeal waiver at
his Fed. R. Crim. P. 11 hearing, and his argument that the
Government breached the proffer agreement cannot be waived. We
review a waiver of appellate rights de novo. United States v.
Blick, 408 F.3d 162, 168 (4th Cir. 2005).
4
In his plea agreement, Anderson agreed to waive all rights
to appeal his conviction and sentence except for his
supplemental motion to dismiss and claims of ineffective
assistance of counsel and prosecutorial misconduct. Our review
of the record on appeal leads us to conclude that the district
court did not expand the appeal waiver in attempting to explain
the waiver’s terms to Anderson. See United States v. Wood, 378
F.3d 342, 349 (4th Cir. 2004).
The only argument in Anderson’s supplemental motion to
dismiss is his argument that the Government committed an
anticipatory breach of the proffer agreement. Thus, to the
extent Anderson argues that the district court erred in
interpreting the proffer agreement and allowing the use of
Anderson’s proffer statements at sentencing, those claims fall
within the scope of the waiver. 3
Although we have held that “[a] defendant’s waiver of
appellate rights cannot foreclose an argument that the
government breached its obligations under [a] plea agreement,”
United States v. Dawson, 587 F.3d 640, 644 n.4 (4th Cir. 2009),
we have not extended this rule to proffer agreements. The
3To the extent Anderson seeks to recast this claim as an
allegation of prosecutorial misconduct, he did not adequately
preserve the claim because he did not pursue this argument until
he filed his reply brief. See A Helping Hand, LLC v. Baltimore
Cty., 515 F.3d 356, 369 (4th Cir. 2008).
5
Government did not commit an anticipatory breach of the proffer
agreement, and Anderson’s argument that the Government breached
the agreement by using before the grand jury information
obtained during the proffer sessions is a nonjurisdictional
defect waived by Anderson’s guilty plea. United States v.
Moussaoui, 591 F.3d 263, 279 (4th Cir. 2010). Thus, this
portion of the appeal is foreclosed by the waiver provision in
the plea agreement.
Accordingly, we affirm in part and dismiss the appeal in
part. We deny Anderson’s motions to file a pro se supplemental
brief. 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 IN PART;
DISMISSED IN PART
6