US v. James Wilkins

Filing 920091009

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-4983

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JAMES H. WILKINS, Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. James R. Spencer, Chief District Judge. (3:08-cr-00076-JRS-1)

Submitted:

September 24, 2009

Decided:

October 9, 2009

Before WILKINSON, GREGORY, and AGEE, Circuit Judges.

Dismissed in part; affirmed in part by unpublished per curiam opinion.

Steven P. Hanna, Richmond, Virginia, for Appellant. Dana J. Boente, United States Attorney, Gurney W. Grant, II, Assistant United States Attorney, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: James agreement, to H. two Wilkins counts pled of guilty, fraud, pursuant in to a plea of 18

bank

violation

U.S.C. § 1344 (2006), and possession of firearms by a felon, in violation of 18 U.S.C. § 922(g)(1) (2006). He received a

sentence of 108 months' imprisonment and filed a timely appeal. The Government filed a motion to dismiss, contending that Wilkins's appeal is barred by the waiver contained in his plea agreement. In response, Wilkins filed a motion to compel,

asserting that the Government breached the plea agreement "by pursuing the obstruction enhancement without sufficient evidence and advocating for the loss of acceptance of responsibility

points."

We deferred action on the Government's motion pending

the submission of Appellant's brief. In his brief, Wilkins contends that the district court erred in enhancing his offense level for obstruction of justice, failing to reduce his offense level for acceptance of

responsibility, and failing to require the Government to move for an additional reduction for acceptance of responsibility. The Government's his right brief to reasserts its argument that the that Wilkins court

waived

appeal;

asserts

district

correctly increased Wilkins's offense level for obstruction of justice, precluding any offense level reduction for acceptance of responsibility; and contends that it did not breach the plea 2

agreement in failing to move for an additional reduction for acceptance of responsibility. Because the primary issues raised

in Wilkins's appeal are barred by the appellate waiver in his plea agreement, we dismiss the appeal as to those issues. To

the extent Wilkins raises a claim not encompassed within the scope of the appellate waiver, we affirm. Whether a defendant effectively waived his right to appeal pursuant to a plea bargain is an issue of law that is reviewed de novo. (4th Cir. 2005). and United States v. Blick, 408 F.3d 162, 168 Where the the government does seeks not to enforce that an the

appeal

waiver

appellant

contend

government is in breach of its plea agreement, a waiver will be enforced if the record shows the waiver is valid and Id. the An

challenged issue falls within the scope of the waiver.

appeal waiver is valid if it is "the result of a knowing and intelligent decision to forego the right to appeal." United

States v. Broughton-Jones, 71 F.3d 1143, 1146 (4th Cir. 1995) (internal quotation marks and citations omitted). Generally, if

the district court fully questions a defendant at his Fed. R. Crim. P. 11 proceeding regarding the waiver of his right to appeal, the waiver is both valid and enforceable. See United However,

States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005).

"we will not enforce an otherwise valid appeal waiver against a defendant if the government 3 breached the plea agreement

containing that waiver." 495 (4th Cir. 2006).

United States v. Cohen, 459 F.3d 490,

After reviewing the record, we find the district court fully questioned Wilkins regarding his intent to waive his right to appeal, and Wilkins does not suggest otherwise. Wilkins's waiver is both valid and enforceable. Therefore,

Additionally,

it is immediately apparent that two of the issues raised by Wilkins on appeal ­ whether the district court erred in

enhancing the offense level for obstruction of justice and by failing to reduce the offense level for acceptance of In

responsibility -- are within the scope of the appeal waiver.

Wilkins's plea agreement, he explicitly waived "the right to appeal the conviction and any sentence within the statutory

maximum described above (or the manner in which that sentence was determined)." As both these issues concern "the manner in

which [his] sentence was determined," it is clear that, unless the Government breached its plea agreement, these issues are barred by Wilkins's appeal waiver. When a claim of breach of a plea agreement has been preserved, we review the district court's factual findings for clear error and its "application of principles of contract

interpretation de novo." 342 (4th Cir. 2001).

United States v. Bowe, 257 F.3d 336,

However, because Wilkins did not claim in

the district court that the Government had breached the plea 4

agreement, our review is for plain error. States, 129 S. Ct. 1423, 1428 (2009).

Puckett v. United

Plea agreements are grounded in contract law, and both parties should receive the benefit of their bargain. F.3d at 345. promise it Bowe, 257

The Government breaches the plea agreement when a made to induce the plea goes unfulfilled. Because of

Santobello v. New York, 404 U.S. 257, 262 (1971).

constitutional and supervisory concerns, the Government is held to a greater degree of responsibility for imprecision or

ambiguities in plea agreements. F.2d 294, 300-01 (4th Cir.

United States v. Harvey, 791 Where an agreement is

1986).

ambiguous in its terms, the terms must be construed against the Government. Id. at 300, 303. However, "[w]hile the

[G]overnment must be held to the promises it made, it will not be bound to those it did not make." 792 F.2d 461, 464-65 (4th Cir. 1986). Wilkins asserts that the Government breached the plea agreement by "pursuing the obstruction enhancement without United States v. Fentress,

sufficient evidence" and "advocating for the loss of acceptance of responsibility points." by the record. Wilkins's assertions are unsupported

The Government filed a lengthy chronology of

Wilkins's statements to investigators, replete with instances in which Wilkins of purposefully various misled FBI The agents regarding the

whereabouts

assets. 5

chronology

compared

statements made by Wilkins to investigators to those he made in letters to a friend, instructing the friend to sell several

assets in order to prevent their seizure. incorporated report. the by the probation officer

This chronology was into the presentence

Moreover, the plea agreement contained no agreement by to refrain from seeking an obstruction

Government

enhancement. Similarly, Government's acceptance qualifying Guidelines of for contrary to to Wilkins's for an assertions, the

agreement

move

additional was of 2008).

one-level on his

responsibility the

reduction decrease (May 1,

dependent U.S.

two-level

Sentencing Because the

Manual

§ 3E1.1(a)

district judge determined at sentencing that Wilkins did not qualify for the two-level reduction because of his obstruction of justice, the Government was not obligated to move for an additional one-level decrease, and it did not breach the plea agreement by failing to do so. As the Government did not breach its plea agreement with Wilkins, the issues of whether the district court erred in denying Wilkins a two-point reduction for acceptance of

responsibility and increasing his offense level for obstruction of justice are barred by the appeal waiver contained in his plea agreement. Finally, it is unclear whether Wilkins intended to

raise the Government's alleged breach of the plea agreement as a 6

separate issue or merely a method by which to avoid enforcement of the plea agreement. To the extent that Wilkins raises this

as a separate issue, we find that it is without merit, for the reasons stated above. motion to dismiss in We Accordingly, we grant the Government's part and affirm oral the judgment of the the the the

district facts

court. legal before

dispense

with are

argument

because in aid

and

contentions the court

adequately argument

expressed not

materials

and

would

decisional process. DISMISSED IN PART; AFFIRMED IN PART

7