US v. Benjamin Weatherly
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:12-cr-00477-AJT-2 Copies to all parties and the district court/agency. [999235729].. [13-4325]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4325
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BENJAMIN WEATHERLY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.
Anthony John Trenga,
District Judge. (1:12-cr-00477-AJT-2)
Submitted:
October 31, 2013
Decided:
November 7, 2013
Before MOTZ, KING, and WYNN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Edwin S. Booth, SHUTTLEWORTH, RULOFF, SWAIN, HADDAD & MORECOCK,
PC, Virginia Beach, Virginia, for Appellant. Neil H. MacBride,
United States Attorney, Maya D. Song, Kosta S. Stojilkovic,
Assistant United States Attorneys, Alexandria, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Benjamin
sentence
imposed
Weatherly
after
he
seeks
pled
to
appeal
guilty,
the
120-month
pursuant
to
a
plea
agreement, to one count of conspiracy to commit bank fraud, in
violation of 18 U.S.C. §§ 1344, 1349 (2012), and one count of
aggravated
identity
§ 1028A(a)(1)
theft,
(2012).
On
in
violation
appeal,
Weatherly
of
18
argues
U.S.C.
that
the
Government breached the plea agreement by arguing in support of
an enhancement of his offense level for use of sophisticated
means,
pursuant
to
U.S.
Sentencing
§ 2B1.1(b)(10)(C) (2012).
not
breach
should
be
the
plea
dismissed
Guidelines
Manual
(USSG)
The Government responds that it did
agreement,
based
on
the
and
that
waiver
Weatherly’s
of
appellate
appeal
rights
included in the plea agreement.
The
plea
agreement
included
the
parties’
agreement
regarding the base offense level and enhancements for intended
loss,
number
agreement
of
further
victims,
noted
and
that
obstruction
the
parties
of
justice.
would
The
litigate
the
applicability of a two-level enhancement for a leadership role
pursuant to USSG § 3B1.1, but did not mention the applicability
of
an
enhancement
for
Guidelines provisions.
sophisticated
means
or
any
other
In the presentence investigation report,
the probation officer recommended the base offense level and
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enhancements
recommended
recommended
in
enhancements
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the
for
plea
use
agreement,
of
and
sophisticated
also
means,
possession or use of an authentication device, and leadership
role.
USSG
Weatherly
§§ 2B1.1(b)(10)(C),
objected
calculation.
to
2B1.1(b)(11)(A),
essentially
the
entire
3B1.1(b).
offense
level
The Government agreed that the enhancement for an
authentication device should not apply, but requested a sentence
within
the
enhancement.
Guidelines
range
determined
after
deleting
that
The district court sustained Weatherly’s objection
to the authentication device enhancement, overruled his other
objections,
imprisonment
and
on
sentenced
the
Weatherly
conspiracy
to
count
ninety-six
and
months
twenty-four
of
months
consecutive on the identity theft count, for a total sentence of
120 months of imprisonment.
On appeal, Weatherly argues that the plea agreement
contemplated
all
because
did
it
Guidelines
not
provisions
mention
an
and
enhancements,
enhancement
for
use
and
of
sophisticated means, the Government breached the agreement by
arguing in support of the enhancement.
not
assert
before
the
district
court
Because Weatherly did
that
the
Government
breached the plea agreement, this court’s review is for plain
error.
Puckett v. United States, 556 U.S. 129, 133-34 (2009)
(holding Fed. R. Crim. P. 52(b) plain error rule applies to
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claim of breach of plea agreement).
Accordingly, Weatherly must
show
plainly
not
only
that
the
Government
breached
his
plea
agreement, but also that he was prejudiced by the error and that
“the
breach
notice
public
and
was
so
correct
reputation
obvious
it
of
and
substantial
affect[s]
the
the
judicial
that
fairness,
failure
to
integrity
or
proceedings.”
United
States v. McQueen, 108 F.3d 64, 66 (4th Cir. 1997) (internal
quotation marks and alteration omitted).
“The interpretation of plea agreements is guided by
contract law, and parties to the agreement should receive the
benefit of their bargain.”
Id.
This court “appl[ies] the plain
meaning of the agreement’s terms with the goal of providing each
party the benefit of its bargain.”
F.3d 583, 588 (4th Cir. 2013).
United States v. Weon, 722
The Government breaches a plea
agreement when a promise it made to induce the plea remains
unfulfilled.
Santobello v. New York, 404 U.S. 257, 262 (1971).
But, “the government is held only to those promises that it
actually made, and the government’s duty in carrying out its
obligations under a plea agreement is no greater than that of
fidelity to the agreement.”
United States v. Dawson, 587 F.3d
640, 645 (4th Cir. 2009) (internal quotation marks and citation
omitted); see also United States v. Davis, 689 F.3d 349, 353
(4th Cir. 2012) (“Davis’s claim for breach fails insofar as he
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seeks
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the
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benefit
of
a
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promise
that
the
government
never
made.”).
Our review of the record leads us to conclude that the
Government did not breach the plea agreement.
The section of
the
recommendations
agreement
specifically
nonbinding
containing
referred
sentence
11(c)(1)(B).
to
the
the
Guidelines
provision
recommendations.
Further,
the
in
Rule
Fed.
agreement
11
regarding
R.
contained
Crim.
no
P.
language
precluding the parties from arguing the applicability of other
Guidelines provisions that might be recommended by the probation
officer.
Finally, the agreement stated that it was the entire
agreement between the parties and that “[a]ny modification of
this plea agreement shall be valid only as set forth in writing
in
a
supplemental
or
revised
plea
agreement
signed
by
all
parties.”
When the government seeks to enforce an appeal waiver
and did not breach its obligations under the plea agreement, the
court
will
enforce
the
waiver
if
the
defendant’s
waiver
was
knowing and intelligent and the issues raised on appeal fall
within the scope of the agreement.
United States v. Blick, 408
F.3d 162, 168-69 (4th Cir. 2005).
provided
that
Weatherly
waived
The waiver in this case
“the
right
to
appeal
the
conviction and any sentence within the statutory maximum . . .
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(or the manner in which that sentence was determined) on the
grounds set forth in Title 18, United States Code, Section 3742
or on any ground whatsoever.”
This court reviews the validity of an appellate waiver
de novo.
2010).
United States v. Manigan, 592 F.3d 621, 626 (4th Cir.
To determine whether an appeal waiver is knowingly and
intelligently entered, the court examines the totality of the
circumstances,
educational
terms.
including
background,
the
and
defendant’s
familiarity
experience,
with
the
conduct,
agreement’s
United States v. General, 278 F.3d 389, 400 (4th Cir.
2002).
In
this
case,
Weatherly
does
not
assert
that
the
appellate waiver was not knowing or intelligent, or that his
agreement to the waiver was in any way involuntary.
Our review
of the plea hearing transcript reveals that the district court
confirmed that Weatherly was competent to plead guilty, and that
he had discussed the plea agreement with counsel before signing
it.
The
court
specifically
questioned
Weatherly
about
the
appellate waiver and confirmed that he understood he was waiving
his right to appeal by entering the agreement.
district
court
sentenced
Weatherly
within
the
Because the
applicable
statutory maximums, and he raises no claim outside the scope of
the waiver, it is valid and enforceable.
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According, we dismiss Weatherly’s appeal.
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.
DISMISSED
7
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