US v. Linda Knox

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:10-cr-00086-MR-DLH-1. Copies to all parties and the district court/agency. [999153230]. [12-4882]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-4882

UNITED STATES OF AMERICA,
Plaintiff- Appellee,
v.
LINDA ALLEN KNOX,
Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:10-cr-00086-MR-DLH-1)

Submitted:

June 27, 2013

Decided:

July 18, 2013

Before WILKINSON, KING, and GREGORY, Circuit Judges.

Dismissed in part; affirmed in part by unpublished per curiam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

Christian E. Dysart, DYSART LAW, Raleigh, 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Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Linda Allen Knox pled guilty to mail fraud and aiding
and

abetting

in

violation

of

18

U.S.C.A.

§ 1341

(West

Supp.

2013), and 18 U.S.C. § 2 (2006), and was sentenced to a term of
thirty-three months’ imprisonment.
contending

that

the

waiver

of

Knox appeals her sentence,
appeal

rights

in

her

plea

agreement is unenforceable because the government breached the
plea agreement by arguing at sentencing for a greater amount of
loss

than

that

stipulated

in

the

plea

agreement,

that

the

district court clearly erred in determining the amount of loss,
and

that

she

received

ineffective

assistance

connection with the plea negotiations.

of

counsel

in

We affirm in part and

dismiss in part.
This court “will not enforce an otherwise valid appeal
waiver against a defendant if the government breached the plea
agreement containing that waiver.”
F.3d 490, 495 (4th Cir. 2006).

United States v. Cohen, 459

“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.”
2000).
court,

United States v. Snow, 234 F.3d 187, 189 (4th Cir.

Because Knox did not raise this issue in the district
it

is

reviewed

for

plain

error.

States, 556 U.S. 129, 133-34 (2009).

Puckett

v.

United

To prevail under this

standard, Knox must show not only that the government plainly
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breached the plea agreement, but also that he was prejudiced by
the error and that “the breach was so obvious and substantial
that failure to notice and correct it affected the fairness,
integrity

or

public

reputation

of

the

judicial

proceedings.”

United States v. McQueen, 108 F.3d 64, 65-66 (4th Cir. 1997)
(internal quotation marks and alteration omitted); see United
States v. Dawson, 587 F.3d 640, 645 (4th Cir. 2009).

Plea

agreements are grounded in contract law, and both parties should
receive the benefit of their bargain.
466 F.3d 310, 314 (4th Cir. 2006).

United States v. Chase,

The government breaches the

plea agreement when a promise it made to induce the plea goes
unfulfilled.

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

After

reviewing

the

record,

we

conclude

that

the

government did not breach the plea agreement, but argued that
the loss was within the range stipulated in the plea agreement.
The district court determined that the loss was an amount within
that range and ordered restitution in an amount lower than the
stipulated
appellate

amount.
rights

Knox
was

acknowledges

knowing

and

that

her

intelligent,

satisfied that the waiver is enforceable.

waiver
and

we

of
are

Therefore, the waiver

bars consideration of the sentencing issues Knox seeks to raise.
Claims of ineffective assistance of counsel generally
are not cognizable on direct appeal.

United States v. Benton,

523 F.3d 424, 435 (4th Cir. 2008); United States v. King, 119
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F.3d 290, 295 (4th Cir. 1997).

Instead, to allow for adequate

development of the record, a defendant must bring her claims in
a 28 U.S.C.A. § 2255 (West Supp. 2013) motion.
at 295.
appeal

King, 119 F.3d

However, such claims will be entertained on direct
if

assistance.
Cir. 1999).

the

record

conclusively

establishes

ineffective

United States v. Richardson, 195 F.3d 192, 198 (4th
In this case, the record does not conclusively

demonstrate that Knox’s counsel was ineffective.
We

therefore

affirm

Knox’s

Knox’s appeal of her sentence.

conviction

and

dismiss

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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