UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4213
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DARYL WENDELL BARLEY, a/k/a Black,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Danville. Jackson L. Kiser, Senior
District Judge. (4:10-cr-00010-jlk-1)
Submitted: October 27, 2011 Decided: November 4, 2011
Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Rena G. Berry, Roanoke, Virginia, for Appellant. Timothy J.
Heaphy, United States Attorney, Donald R. Wolthuis, Assistant
United States Attorney, Roanoke, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pursuant to a plea agreement, Daryl Wendell Barley
pled guilty to one count of distribution of more than fifty
grams of cocaine base and one count of possession with intent to
distribute cocaine powder, in violation of 21 U.S.C. § 841(a)(1)
(2006). The district court sentenced Barley to concurrent terms
of 292 months’ imprisonment.
Despite the waiver of the right to appeal included in
his plea agreement, Barley seeks to appeal his sentence, arguing
that the appeal waiver is not enforceable because the Government
breached the plea agreement by seeking a sentence based on a
higher drug quantity than the stipulated quantity and that the
district court erred by finding that Barley breached the plea
agreement. He further argues that the district court erred in
determining the drug quantity attributable to him and that the
sentence is unreasonable and excessive. The Government contends
that Barley’s appeal is barred by the appeal waiver.
A defendant may waive the right to appeal pursuant to
a valid plea agreement. United States v. Manigan, 592 F.3d 621,
627 (4th Cir. 2010). Whether a defendant validly waived his
right to appeal is a question of law that this court reviews de
novo. United States v. Blick, 408 F.3d 162, 168 (4th Cir.
2005).
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Barley does not challenge the validity of his plea
agreement or the appeal waiver. However, he claims that the
appeal waiver is not enforceable against him because the
Government breached the plea agreement by seeking a sentence
based on a higher quantity of drugs than stipulated in the plea
agreement. Furthermore, he argues that the district court erred
by finding that he had violated the terms of his plea agreement.
This court “will not enforce an otherwise valid appeal
waiver against a defendant if the [G]overnment breached the plea
agreement containing that waiver.” United States v. Cohen, 459
F.3d 490, 495 (4th Cir. 2006). A criminal defendant asserting
the Government breached a plea agreement bears the burden of
proving such a breach by a preponderance of the evidence.
United States v. Snow, 234 F.3d 187, 189 (4th Cir. 2000).
The plea agreement expressly provided that if Barley
failed to comply with part of the agreement, the Government
could “refuse to abide by any provision, stipulations, and/or
recommendations contained in this plea agreement.” After
reviewing the record, we conclude that, prior to sentencing,
Barley engaged in criminal conduct, thus violating the terms of
the plea agreement. Such a breach released the Government from
its obligations under the agreement. United States v. Bowe, 309
F.3d 234, 237 (4th Cir. 2002); United States v. West, 2 F.3d 66,
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69-70 (4th Cir. 1993). Accordingly, we conclude that the
Government did not breach the plea agreement.
Because Barley’s claim of the Government’s breach
fails, all terms of the plea agreement, including the appeal
waiver, are enforceable against Barley. Moreover, Barley’s
claims on appeal fall squarely within the scope of the appeal
waiver. Accordingly, we dismiss Barley’s appeal. 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
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