US v. Gregory Anderson

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:10-cr-00260-MOC-DSC-1 Copies to all parties and the district court/agency. [999682945].. [14-4683]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4683

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GREGORY D. ANDERSON,
Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Max O. Cogburn, Jr.,
District Judge. (3:10-cr-00260-MOC-DSC-1)

Submitted:

September 30, 2015

Decided:

October 21, 2015

Before SHEDD, DUNCAN, and KEENAN, Circuit Judges.

Affirmed in part; dismissed in part by unpublished per curiam
opinion.

Ross Hall Richardson, Executive Director, Joshua B. Carpenter,
FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville,
North Carolina, for Appellant.
Jill Westmoreland Rose, Acting
United States Attorney, Anthony J. Enright, Assistant United
States Attorney, Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Gregory D. Anderson pled guilty, pursuant to a conditional
plea agreement, to conspiracy to defraud the United States, in
violation of 18 U.S.C. § 371 (2012); bank fraud, in violation of
18

U.S.C.

§ 1344

(2012);

making

false

statements

to

the

Department of Housing and Urban Development, in violation of 18
U.S.C. § 1010 (2012); money laundering to conceal the proceeds
of

illegal

(a)(1)(B)(i)

activities,

in

(2012);

forcibly

and

violation

of

resisting

18

U.S.C.

arrest

§ 1956

inflicting

injury to persons assisting the United States, in violation of
18 U.S.C. § 111 (2012).
district

court

erred

in

On appeal, Anderson argues that the
interpreting

a

preindictment

proffer

agreement, 1 in finding that the Government did not commit an
anticipatory

breach

of

the

proffer

agreement,

and

in

using

information obtained from the proffer agreement at sentencing.
The

Government

asserts

that

Anderson’s

waiver

of

appellate

rights in the plea agreement bars some of his claims.

We affirm

in part and dismiss in part.
First, we consider Anderson’s argument that the Government
committed an anticipatory breach of the proffer agreement by

1

See United States v. Lopez, 219 F.3d 343, 345 n.1 (4th
Cir. 2000) (discussing proffer agreements generally).

2

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reading him his Miranda 2 rights and presenting him an advice—of—
rights

form

prior

argues

that

this

to

his

second
to

amounts

proffer

anticipatory

an

session.

Anderson

breach

of

the

proffer agreement because the Government’s actions contradicted
its central obligations under the proffer agreement — that his
statements would not be used against him in court.
Whether

a

proffer

agreement

has

been

breached

is

“a

question of law that we review de novo.”

Lopez, 219 F.3d at

346.

like

“[A]

proffer

agreement

operates

a

contract;

accordingly, we examine its express terms to determine whether
[a party] is in breach.”

United States v. Gillion, 704 F.3d

284, 292 (4th Cir. 2012).

We rely on principles of contract law

in interpreting criminal agreements but “hold[] the Government
to a greater degree of responsibility than the defendant . . .
for imprecisions or ambiguities.”
F.2d

294,

300

anticipatory
renounces

(4th

breach

its

Cir.

1986).

occurs

United States v. Harvey, 791

when

future

Under
“one

contractual

contract

party

to

obligations,

a

law,

an

contract

in

essence

promising ahead of time not to perform when performance comes
due.”

Homeland

Training

Ctr.,

LLC

v.

Summit

Research Ctr., 594 F.3d 285, 292 (4th Cir. 2010).

2

Miranda v. Arizona, 384 U.S. 436 (1966).

3

Point

Auto.

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We

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conclude

that

the

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Government

did

not

anticipatory breach of the proffer agreement.

commit

an

The record shows

that the Government’s agents answered Anderson’s questions about
the effects of the Miranda warnings on the proffer agreement,
that Anderson previously communicated a desire to be represented
by

counsel,

that

the

agents

were

concerned

when

Anderson

appeared at the proffer meeting without counsel, and that the
agents’ motivations in advising Anderson of his rights were to
ensure

he

understood

his

right

to

have

counsel

present.

Moreover, the terms of the proffer agreement expressly provided
circumstances

in

which

Anderson’s

statements

could

be

used

against him in court, and, thus, the agents’ decision to provide
a Miranda warning and an advice—of—rights form did not reject
the

Government’s

central

obligations

under

the

Government’s

contention

proffer

agreement.
Next,
remainder

we
of

consider
Anderson’s

the

appeal

is

barred

appellate rights in his plea agreement.

by

the

that

the

waiver

of

Anderson argues that we

should consider the merits of his remaining arguments because
the district court expanded the scope of the appeal waiver at
his Fed. R. Crim. P. 11 hearing, and his argument that the
Government breached the proffer agreement cannot be waived.
review a waiver of appellate rights de novo.
Blick, 408 F.3d 162, 168 (4th Cir. 2005).
4

We

United States v.

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In his plea agreement, Anderson agreed to waive all rights
to

appeal

his

supplemental

conviction

motion

to

and

sentence

dismiss

and

except

claims

of

for

his

ineffective

assistance of counsel and prosecutorial misconduct.

Our review

of the record on appeal leads us to conclude that the district
court did not expand the appeal waiver in attempting to explain
the waiver’s terms to Anderson.

See United States v. Wood, 378

F.3d 342, 349 (4th Cir. 2004).
The

only

dismiss

is

his

anticipatory
extent

argument

interpreting

the

Anderson’s

argument

breach

Anderson

in

of

that

the

argues

the

proffer

that

proffer

the

supplemental
Government

agreement.
district

agreement

and

motion

to

committed

an

Thus,
court

allowing

to

the

erred

in

the

use

of

Anderson’s proffer statements at sentencing, those claims fall
within the scope of the waiver. 3
Although
appellate

we

rights

have

held

cannot

that

“[a]

foreclose

defendant’s

an

argument

waiver
that

of
the

government breached its obligations under [a] plea agreement,”
United States v. Dawson, 587 F.3d 640, 644 n.4 (4th Cir. 2009),
we

have

not

extended

this

rule

3

to

proffer

agreements.

The

To the extent Anderson seeks to recast this claim as an
allegation of prosecutorial misconduct, he did not adequately
preserve the claim because he did not pursue this argument until
he filed his reply brief. See A Helping Hand, LLC v. Baltimore
Cty., 515 F.3d 356, 369 (4th Cir. 2008).

5

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Government did not commit an anticipatory breach of the proffer
agreement, and Anderson’s argument that the Government breached
the

agreement

obtained
defect

by

during

waived

Moussaoui,

591

using

the

by

before

proffer

Anderson’s

F.3d

263,

the

grand

sessions
guilty

279

(4th

is

a

plea.
Cir.

jury

information

nonjurisdictional
United

2010).

States
Thus,

v.

this

portion of the appeal is foreclosed by the waiver provision in
the plea agreement.
Accordingly, we affirm in part and dismiss the appeal in
part.

We deny Anderson’s motions to file a pro se supplemental

brief.
legal

We dispense with oral argument because the facts and
contentions

before this

court

are

adequately

and

argument

presented

would

not

in
aid

the
the

materials
decisional

process.
AFFIRMED IN PART;
DISMISSED IN PART

6