UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4974
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
HAROLD GONZALEZ ROQUE,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Max O. Cogburn, Jr.,
District Judge. (3:09-cr-00177-MOC-2)
Submitted: September 28, 2012 Decided: November 26, 2012
Before NIEMEYER, DIAZ, and FLOYD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Denzil H. Forrester, Charlotte, North Carolina, for Appellant.
Anne M. Tompkins, United States Attorney, Melissa L. Rikard,
Assistant United States Attorney, Charlotte, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Harold Gonzalez Roque pled guilty pursuant to a plea
agreement to one count of conspiracy to defraud the Government
by filing false claims, 18 U.S.C. § 286 (2006) (Count One), and
conspiracy to defraud the United States, 18 U.S.C. § 371 (2006)
(Count Two). The Government moved for a downward departure
under U.S. Sentencing Guidelines Manual (“USSG”) § 5K1.1 (2010)
based on Roque’s substantial assistance, and Roque ultimately
received a 72-month sentence. On appeal, Roque seeks to
challenge the sentencing court’s calculation regarding
restitution, alleging the Government breached the plea
agreement by referring to a money judgment entered into by the
parties where none existed. The Government concedes that the
statement was made in error, but argues the error did not
constitute a breach or prejudice Roque. The Government further
contends that because Roque agreed to waive his right to appeal
his sentence, this appeal should be dismissed. Roque counters
that the Government’s alleged breach voids his appellate waiver.
Because we conclude that the Government did not breach the plea
agreement and that the appeal waiver should be enforced, we
dismiss the appeal.
Roque entered into a plea agreement in which the
parties agreed pursuant to Fed. R. Crim. P. 11(c)(1)(B) to
jointly recommend to the court: (1) the amount of loss known to
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or reasonably foreseeable to Roque was more than seven million
dollars, but less than twenty million dollars, corresponding to
a twenty-level enhancement under USSG § 2B1.1(b)(1)(K); (2) the
“loss” under USSG § 2B1.1(b) may be different from, greater
than, or less than “restitution” under 18 U.S.C. § 3556 (2006);
and (3) Roque’s adjusted offense level is thirty-four. With
respect to restitution, the plea agreement provided:
The defendant agrees to . . . pay full
restitution, regardless of the resulting loss amount,
to all victims directly or indirectly harmed by the
defendant’s “relevant conduct.” . . . The defendant
understands that such restitution will be included in
the Court’s Order of Judgment and an unanticipated
amount of a restitution order will not serve as
grounds to withdraw the defendant’s guilty plea.
Roque agreed to waive all rights to notice of forfeiture under
Fed. R. Crim. P. 32.2. Additionally, he agreed to waive his
right (1) to contest the conviction except for claims of
ineffective assistance of counsel or prosecutorial misconduct,
and (2) to appeal whatever sentence was imposed with the two
exceptions set forth in (1).
At sentencing, the district court affirmed the
magistrate judge’s findings that Roque’s plea was knowingly and
voluntarily made, and that he understood the charges and the
consequences of his plea. The parties stipulated to the factual
basis as set forth in the presentence report (“PSR”). Neither
party objected to the PSR. When the district court asked
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whether there was any criminal forfeiture in this case to be
considered as part of the judgment, the Assistant United States
Attorney responded: “Your Honor, we did I think execute a money
judgment. We’d ask the Court to just orally pronounce that. I
think it’s been executed by the parties and it’s been filed.”
Defense counsel stated he had no objections to that motion. The
court further ordered Roque to make restitution to the Internal
Revenue Service in the amount of $12,342,117, as calculated in
the PSR, noting that Roque was jointly and severally liable for
the total amount of restitution with his co-conspirators.
Based on the Assistant United States Attorney’s
statement, the court noted there was a consent judgment
agreement between the parties for the total amount of
restitution in this case. The court recognized the judgment,
ordered that it become a part of the record, stated that it
would be signed by the court, and made the judgment a part of
the sentence. The defense again did not object.
On appeal, Roque maintains that the Government
breached the plea agreement at sentencing by proclaiming the
existence of a consent judgment that did not exist. This
statement, according to Roque, violated the plea agreement as it
altered a material term of the plea document, i.e., restitution,
and therefore voids his waiver of his right to appeal. He seeks
to argue on appeal that his sentence in unreasonable because the
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district court abused its discretion in ordering a restitution
amount of $12.3 million dollars, based on a non-existent
agreement.
Because Roque did not object to the Government’s
statement as a breach of the plea agreement, this court’s review
is for plain error. Puckett v. United States, 556 U.S. 129,
133–36 (2009); United States v. McQueen, 108 F.3d 64, 65–66 & n.
1 (4th Cir. 1997) (citing United States v. Fant, 974 F.2d 559,
565 (4th Cir. 1992)). “It is settled that a defendant alleging
the Government’s breach of a plea agreement bears the burden of
establishing that breach by a preponderance of the evidence.”
United States v. Snow, 234 F.3d 187, 189 (4th Cir. 2000). Under
plain error review, Roque must show not only that the plea
agreement was breached, but also that “the breach was ‘so
obvious and substantial that failure to notice and correct it
affect[ed] the fairness, integrity or public reputation of the
judicial proceedings.’” McQueen, 108 F.3d at 66 & n. 4 (quoting
Fant, 974 F.2d at 565).
The Government concedes that there is no record of a
money judgment agreement signed by the parties; however, it
counters that Roque fails to demonstrate the Government’s
mistaken assertion was contrary to any promise the Government
made in the plea agreement or that Roque was prejudiced by the
statement. When a plea agreement rests on an agreement or
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promise that can be said to be part of the inducement or
consideration, the promise must be fulfilled. United States v.
Dawson, 587 F.3d 640, 645 (4th Cir. 2009). On the other hand,
no party is obligated to do more than what is specified in the
plea agreement itself. Id.
Under Fed. R. Crim. P. 32(b)(1)(A), which pertains to
forfeitures, “[i]f the Government seeks a personal money
judgment, the court must determine the amount of money that the
defendant will be ordered to pay.” The Government correctly
notes that it made no promises or obligations in the plea
agreement with respect to whether it would seek a money
judgment. Therefore, Roque cannot establish the Government’s
statement, albeit mistaken, constituted a breach of the plea
agreement.
Assuming arguendo that the Government’s statement
constituted a breach, that statement, contrary to Roque’s
assertion, did not affect the ultimate order of restitution and,
therefore, no prejudice resulted. In the PSR, the probation
officer specifically calculated a restitution amount of
$12,342,117, the same amount ordered by the court. See Fed. R.
Crim. P. 32(c)(1)(B) (directing probation officer to conduct
investigation and submit report regarding restitution to the
court). When given an opportunity at sentencing, Roque lodged
no objections to the probation officer’s calculation of
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restitution in the PSR. Moreover, Roque does not assert that
there has been any forfeiture of his assets in reliance on the
non-existent money judgment. We conclude there was no error,
much less plain error, because the Government did not breach the
plea agreement.
The Government seeks enforcement of the plea
agreement’s appeal waiver. A criminal defendant may waive the
right to appeal if that waiver is knowing and intelligent.
United States v. Poindexter, 492 F.3d 263, 270 (4th Cir. 2007).
Generally, if the district court fully questions a defendant
regarding the waiver of his right to appeal during a plea
colloquy performed in accordance with Rule 11, the waiver is
both valid and enforceable. United States v. Johnson, 410 F.3d
137, 151 (4th Cir. 2005). Whether a defendant validly waived
his right to appeal is a question of law this court reviews de
novo. United States v. Blick, 408 F.3d 162, 168 (4th Cir.
2005). Where the Government seeks to enforce an appeal waiver
and there is no substantiated claim that the Government breached
its obligations under the plea agreement, this court will
enforce the waiver if the record establishes that (1) the
defendant knowingly and intelligently agreed to waive the right
to appeal, and (2) the issue being appealed is within the scope
of the waiver. Id. at 168 & n. 5.
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Roque waived his right to appeal his sentence except
based on claims of ineffective assistance of counsel and
prosecutorial misconduct. This portion of the plea agreement
was reviewed at the Rule 11 hearing and Roque acknowledged that
he agreed to the provision. On appeal, Roque argues that the
appeal waiver is not enforceable because the Government breached
the plea agreement. Because the Government did not breach the
plea agreement and Roque does not raise an issue outside the
scope of the agreement, the appeal waiver will be enforced.
Accordingly, we dismiss the 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
He does not argue that his plea was not knowing or
voluntary.
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