US v. Antonio V. White

Filing

UNPUBLISHED AUTHORED OPINION filed. Originating case number: 5:12-cr-00308-D-1. Copies to all parties and the district court/agency. [999680202].. [14-4678]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4678

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTONIO VLAIR WHITE,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
James C. Dever III,
Chief District Judge. (5:12-cr-00308-D-1)

Argued:

September 17, 2015

Decided:

October 19, 2015

Before WILKINSON, AGEE, and HARRIS, Circuit Judges.

Vacated and remanded by unpublished opinion. Judge Harris wrote
the opinion, in which Judge Wilkinson and Judge Agee joined.

ARGUED:
Jennifer C. Leisten, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant.
Eric D.
Goulian, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee. ON BRIEF: Thomas P. McNamara, Federal
Public Defender, Stephen C. Gordon, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North
Carolina, for Appellant.
Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.

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PAMELA HARRIS, Circuit Judge:
After Antonio White (“White”) was indicted for his role in
a string of residential burglaries, he struck a deal with the
Government, pleading guilty to a conspiracy offense in exchange
for the Government’s agreement to drop other charges.

But as a

result of a complicated statutory scheme and one critical error
in drafting the plea agreement, White and the Government now
disagree about the most fundamental aspect of their bargain:

To

what conspiracy offense, exactly, did White plead guilty?

In

the absence of a meeting of the minds over this essential term,
there can be no valid plea agreement.
White’s

judgment

of

conviction

Accordingly, we vacate

and

remand

for

further

proceedings.

I.
In December 2008, the Criminal Investigations Division of
the

United

States

Army

began

to

investigate

a

series

of

residential burglaries at the Fort Bragg Military Reservation
(“Fort Bragg”) in North Carolina.
that

White,

stealing
Bragg.
role

in

along

private

with

and

two

The investigation revealed

other

government

people,

property

was

from

involved

homes

on

in
Fort

When interviewed by investigators, White acknowledged a
the

burglaries.

In

September

returned an indictment against White.
3

2012,

a

grand

jury

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Residential

burglary

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generally

is

not

a

federal

crime.

But when it is committed on a federal enclave, like Fort Bragg,
it

may

give

rise

to

federal

charges

Crimes Act (“ACA”), 18 U.S.C. § 13.

under

the

Assimilative

The ACA enables federal

authorities to prosecute conduct that occurs on federal enclaves
and would be punishable if committed elsewhere within the local
jurisdiction, “assimilating” state law to that end.
v. United States, 523 U.S. 155, 160 (1998).

See Lewis

And indeed, one of

the crimes with which White was charged — in the second count of
his indictment — was a violation of 18 U.S.C. § 13, assimilating
North Carolina’s residential breaking and entering statute.

See

North Carolina General Statute (N.C. Gen. Stat.) § 14-54.
The

first

count

of

the

indictment

charged

conspiracy to commit that federal offense.
things begin to get complicated.

White

with

And here is where

Because a federal conspiracy

offense rests on an underlying criminal objective, Count One
necessarily refers to two separate criminal statutes — or three,
if we include the assimilated state statute.

Page one of the

indictment, under the heading “Count One,” tracks the elements
of North Carolina law and identifies a conspiracy
to unlawfully break and enter buildings on various
occasions, namely dwelling homes, with the intent to
commit larceny therein, without the consent of the
owners, in violation of Title 18, United States Code,
Section
13,
assimilating
North
Carolina
General
Statute, Section 14-54.

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J.A. 13 (emphasis added).

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On page two, under the heading “Overt

Acts,” the indictment describes the acts undertaken by White in
“furtherance

of

the

conspiracy,”

“[a]ll

in

violation

of

the

provisions of Title 18, United States Code, Section 371,” J.A.
14 (emphasis added), the general federal conspiracy statute. 1
On January 22, 2013, White signed a plea agreement with the
Government (the “Agreement”).

White agreed to “plead guilty to

Count One” of the indictment, J.A. 35 — the count that ends by
charging White with conspiracy in violation of 18 U.S.C. § 371.
And the Agreement lists the maximum term of imprisonment as five
years, which corresponds to a violation of 18 U.S.C. § 371.
far, so good.

So

But White also “understands, agrees, and admits”

that “as to Count One of the Indictment to which the Defendant
is pleading guilty,” the “Code section violated” is “18 U.S.C.
§ 13 Assimilating N.C.G.S. § 14-54” — not 18 U.S.C. § 371.
37.

Moreover,

the

listed

“charge”

and

“elements”

track

J.A.
the

state-law offense of conspiracy to commit breaking and entering,
but omit the element of an overt act (which had been described
on page two of the indictment), as required for a violation of
18

U.S.C.

§ 371

(federal

conspiracy).

1

That

inconsistency

—

The third and fourth counts of the indictment, not
directly relevant here, charge White with separate federal
offenses under 18 U.S.C. § 661 and § 662, related to the theft
and
receipt
of
stolen
property
in
federal
territorial
jurisdictions.

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which the Government concedes arose from a mistake in drafting
the Agreement — is what has generated the confusion around this
plea.
Unfortunately, that confusion did not manifest itself at
White’s

plea

directly.

colloquy,

when

it

might

the

been

addressed

At the colloquy, the district court confirmed that

White was pleading guilty to Count One.
from

have

indictment

and

informed

It then read the charge

White

that

Count

One

is

a

felony with a maximum punishment of five years’ imprisonment.
The court also summarized the other counts of the indictment,
starting

with

Count

Two,

which

it

described

as

“another

violation of 18 U.S.C. Section 13, assimilating North Carolina
General Statute 14-54, as to breaking and entering generally.”
J.A. 21.

At the end of the colloquy, the court accepted White’s

guilty plea as voluntarily entered.
At White’s initial sentencing hearing, however, it became
apparent that there was a dispute as to the precise charge to
which

White

Presentence

had

pleaded

Investigation

guilty.
Report

The
listed

Probation
a

maximum

Office’s
term

of

imprisonment of five years, tracking 18 U.S.C. § 371, and a
Guidelines sentencing range of 37 to 46 months.
arguing

that

his

guilty

plea

was

to

an

White objected,

assimilated

state

conspiracy charge under 18 U.S.C. § 13 rather than to federal
conspiracy under 18 U.S.C. § 371.
6

Because the underlying state-

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law offense carried a maximum sentence of one year or less,
White

contended,

it

constituted

felony for federal purposes. 2

a

misdemeanor

The Government

rather

than

a

disagreed with

White as to the terms of the Agreement, maintaining that White
had

pleaded

guilty

U.S.C. § 371.

to

a

federal

conspiracy

charge

under

18

Adding to the confusion, however, it agreed with

White’s alternative argument that his sentence could not exceed
one year even under § 371, and that the Agreement’s reference to
a five-year maximum sentence was therefore erroneous.

Plainly

frustrated at the fundamental disagreement that had arisen, the
district court noted that it had “the ability to reject the plea
agreement.”
continue

the

J.A. 49.
matter

But the district court decided instead to
so

that

the

Government

could

prepare

a

responsive memorandum. 3

2

The ACA provides for conformity in the law governing a
federal enclave and the law of the local jurisdiction, with
offenders guilty of a “like offense” and subject to a “like
punishment” as those who act on state property.
See 18 U.S.C.
§ 13. Had White conspired to break and enter dwellings on state
property, as opposed to Fort Bragg, in direct violation of North
Carolina General Statute 14-54, he would have been guilty of a
North Carolina Class I felony.
See N.C. Gen. Stat. §§ 14-2.4,
14-54. According to White, the maximum sentence for his Class I
felony would have been one year or less under the state
sentencing law then in effect, making the offense a misdemeanor
under federal law, see 18 U.S.C. § 3559(a).
3

The Government subsequently changed its position on the
latter point, arguing that White’s maximum sentence under § 371
would exceed one year and thus constitute a felony under federal
law. The district court ultimately agreed with the Government’s
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At the resumed sentencing hearing, the district court ruled
that the parties “had mutually manifested their assent” to a
plea agreement under which White pleaded guilty under 18 U.S.C.
§ 371, rather than 18 U.S.C. § 13.

J.A. 217.

Assuming that the

Agreement itself was ambiguous on this point, the court held
that

the

plea

colloquy

had

clarified

the

matter

in

the

Government’s favor, confirming that White had pleaded guilty to
a

violation

granted

the

imposed

a

of

the

federal

Government’s

sentence

of

conspiracy

motion

time

for

served.

statute.

downward
A

felony

The

court

departure

and

judgment

was

entered on August 15, 2014, and this timely appeal followed.

II.
A.
We

review

the

district

court’s

parties’ plea agreement de novo.
F.3d 342, 348 (4th Cir. 2004).

interpretation

of

the

United States v. Wood, 378

In construing a plea agreement,

we rely on general contract law principles.

See United States

v. Harvey, 791 F.2d 294, 300 (4th Cir. 1986).

But given the

context — the waiver of a defendant’s constitutional right to

revised position, and White challenges that decision on appeal
as well.
Because of our disposition of this case on other
grounds, we need not address that issue.

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trial and the implications for “public confidence in the fair
administration of justice” — we analyze plea agreements with
special scrutiny.

Id. (quoting United States v. Carter, 454

F.2d 426, 428 (4th Cir. 1972)).

The result is that the law

governing the interpretation of plea agreements is an “amalgam
of

constitutional,

concerns.”

Id.

supervisory,

and

private

[contract]

law

These concerns “require holding the Government

to a greater degree of responsibility than the defendant” for
any imprecision in a plea agreement, so that ambiguities are
construed against the Government.

Id.; see also United States

v. Jordan, 509 F.3d 191, 199–200 (4th Cir. 2007).
B.
One of contract law’s fundamental doctrines is that there
can be no agreement unless there is a “meeting of the minds.”
Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th Cir.
1979); see Restatement (Second) of Contracts §§ 17, 20 (1981).
In other words, the parties must have mutually assented to the
essential

elements

of

their

bargain.

Where

“substantial

confusion” calls into question whether there has been such a
meeting of the minds over a plea bargain, there is no valid
agreement to be enforced.

Houmis v. United States, 558 F.2d

182, 183 (3d Cir. 1977) (vacating sentence pursuant to guilty
plea in face of “doubt whether any ‘meeting of the minds’ ever
resulted from plea negotiations”); see United States v. Bradley,
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381 F.3d 641, 648 (7th Cir. 2004) (invalidating plea agreement
and vacating judgment because there was no meeting of the minds
on the nature of the charge to which the defendant pleaded).
Here, there was more than enough confusion to call into
question whether the parties ever came to a meeting of the minds
over

the

precise

charge

to

which

White

was

pleading

guilty.

Most important, while the Government appears to have believed
that White was pleading guilty to federal conspiracy charges
under 18 U.S.C. § 371, the Agreement in fact listed a different
statute — “18 U.S.C. § 13 Assimilating N.C.G.S. § 14-54” — as
the “Code section violated.”

So fundamental a mismatch on what

is perhaps the most essential term of a plea agreement cannot
help but cast doubt on whether a valid agreement exists.
The Government argues that although the Agreement nowhere
references 18 U.S.C. § 371, it nevertheless makes clear, read as
a whole, that White was pleading guilty to a violation of that
statute.

It notes that the Agreement three times cites “Count

One” of the indictment as the count to which White is pleading
guilty, and points as well to the Agreement’s specification of
five years as the maximum term of imprisonment, consistent with
18 U.S.C. § 371.

We are not persuaded that these contextual

clues are sufficient to override the express identification of
18 U.S.C. § 13 as the “Code section violated.”

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Though the Agreement does refer several times to “Count
One,” Count One of the indictment, as discussed above, itself
begins by identifying a conspiracy to violate 18 U.S.C. § 13,
assimilating North Carolina’s breaking and entering law.

Only

on the second page does it conclude with a charge under 18
U.S.C. § 371.

This is a complicated statutory scheme, and a

layperson could be forgiven for not understanding that Count One
does not charge a separate violation of 18 U.S.C. § 13.
Houmis,

558

layperson

F.2d

may

at

not

185

have

(invalidating

understood

its

plea

agreement

terms).

Cf.
where

Indeed,

the

placement of the erroneous citation to 18 U.S.C. § 13 in the
Agreement

compounds

the

confusion,

suggesting

that

Count

One

does charge a violation of the Assimilative Crimes Act: section
three of the Agreement provides that “as to Count One of the
Indictment to which the Defendant is pleading guilty,” the “Code
section violated” is “18 U.S.C. § 13 Assimilating N.C.G.S. § 1454” (emphasis added).

Against all of that, the Agreement’s bare

reference to a five-year maximum term of imprisonment is not
enough to set the record straight, especially in light of the
uncertainty that arose at the sentencing hearing as to whether
that provision also might be in error, even assuming a plea
under 18 U.S.C. § 371.
The Government also argues, and the district court agreed,
that

even

if

the

Agreement

itself
11

is

ambiguous,

the

plea

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colloquy

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resolved

that

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ambiguity

in

its

favor,

establishing

clearly that White pleaded guilty to a violation of 18 U.S.C.
§ 371.

In contract law, extrinsic evidence is often used to

interpret ambiguous agreements.

See Glocker v. W.R. Grace &

Co., 974 F.2d 540, 544 (4th Cir. 1992) (“Alleged ambiguities
should

be

reconciled

evidence.”).
court’s

And

guidance

.

we

at

.

.

have

a

by

admitting

suggested

plea

(“[I]t

might

evidence

that

agreement
assent

.

.

.

the

had

to

an

agreed-or

interpretation

as

may

that

extrinsic

a

district

effectively

resolve

See Harvey, 791 F.2d at 303

possible

parties

actually

to-an

be

before

colloquy

ambiguities in a plea agreement.

relevant,

to

establish

by

ambiguously
mutually

urged

by

extrinsic

worded

manifested
the

plea
their

Government.”);

United States v. Bryant, 436 F. App’x 254, 256–57 (4th Cir.
2011) (plea colloquy confirms defendant’s interpretation of plea
agreement).

So perhaps under the appropriate circumstances an

oral colloquy could clarify that a defendant manifested his or
her

assent

to

a

statutory

written plea agreement.

charge

not

contained

within

the

But given the fundamental nature of the

error in this Agreement, combined with the rule that we construe
ambiguities against the Government, we cannot be confident that
the

plea

colloquy

here

resolved

Government’s favor.

12

all

ambiguities

in

the

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We in no way find fault with the district court’s colloquy,
which amply met the requirements of Rule 11.
11.

Fed. R. Crim. P.

And it is true, as the Government argues, that the court

carefully advised White that he was pleading guilty to a felony
offense with a maximum sentence of five years and twice read
aloud Count One of the indictment.

But in reading Count One,

the district court, through no shortcoming of its own, simply
incorporated

the

same

statutory

complexities

discussed

above,

referring orally to a conspiracy in violation of 18 U.S.C. § 13,
assimilating North Carolina law, as well as to a charge under 18
U.S.C. § 371.
“another

And in describing Count Two, the court called it

violation

of

18

U.S.C.

§

13,

assimilating

North

Carolina General Statute 14-54,” (emphasis added) inadvertently
suggesting that Count One also charged a violation of 18 U.S.C.
§ 13 and thus lending support to White’s interpretation.
To reiterate, the uncertainty in this case was not of the
district court’s making, and we appreciate that court’s efforts
to bring clarity to the situation.

But there is sufficient

confusion on this record that we cannot say with any assurance
that the Agreement reflects a meeting of the minds on the charge
to which White was pleading guilty.
guilty

plea,

where

fundamental

And in the context of a

constitutional

rights

are

at

stake, we must be especially vigilant in finding a meeting of
the minds.

Cf. Boykin v. Alabama, 395 U.S. 238, 242–43 (1969)
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(refusing

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to

accept

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defendant’s

guilty

plea

without

an

affirmative showing that it was made voluntarily and without
ignorance

of

the

offense

charged

because

important constitutional rights).

guilty

plea

waives

Accordingly, we must vacate

White’s judgment of conviction, resting as it does on an invalid
plea agreement.

See Bradley, 381 F.3d at 648 (vacating judgment

predicated on plea agreement that did not reflect a meeting of
the minds).
For the same reason, we must deny White’s request that he
be resentenced, on remand, for a violation of 18 U.S.C. § 13,
under the Agreement as he reads it.

Where the parties have not

mutually manifested their assent to the same understanding of an
essential term, the result is that there simply is no valid plea
agreement to be enforced.
agreement

and

require

Instead, “we must discard the entire

[White]

and

their bargaining all over again.”

the

[G]overnment

to

begin

Id. (quoting United States v.

Barnes, 83 F.3d 934, 941 (7th Cir. 1996)).

III.
For the foregoing reasons, the judgment of the district
court

is

vacated

and

the

case

is

remanded

for

proceedings

consistent with this opinion.
VACATED AND REMANDED

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