UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                       No. 19-4698


UNITED STATES OF AMERICA,

                     Plaintiff - Appellee,

              v.

TREYTON LEE THOMAS, a/k/a Tracy Lee Thomas, a/k/a Trayton Thomas, a/k/a
T. L. Thomas, a/k/a Lee Thomas, a/k/a Erick Stratton,

                     Defendant - Appellant.



                                       No. 19-4699


UNITED STATES OF AMERICA,

                     Plaintiff - Appellee,

              v.

TREYTON LEE THOMAS, a/k/a Tracy Lee Thomas, a/k/a Trayton Thomas, a/k/a
T. L. Thomas, a/k/a Lee Thomas, a/k/a Erick Stratton,

                     Defendant - Appellant.



Appeals from the United States District Court for the Eastern District of North Carolina, at
Raleigh. James C. Dever, III, District Judge. (5:18-cr-00087-D-1; 5:16-cr-00298-D-1)


Submitted: July 31, 2020                                        Decided: August 14, 2020
Before MOTZ and RICHARDSON, Circuit Judges, and SHEDD, Senior Circuit Judge.


Affirmed in part and dismissed in part by unpublished per curiam opinion.


Joseph B. Gilbert, TARLTON POLK PLLC, Raleigh, North Carolina, for Appellant.
Robert J. Higdon, Jr., United States Attorney, Jennifer P. May-Parker, Susan B. Menzer,
Assistant United States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY,
Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

       In these consolidated appeals, Treyton Lee Thomas appeals his convictions for

income tax evasion, in violation of 26 U.S.C. § 7201, and wire fraud, in violation of 18

U.S.C. § 1343. Thomas asserts that the Government breached the plea agreement by

advocating for an obstruction of justice Sentencing Guidelines enhancement and by

asserting that he was ineligible for a Guidelines reduction for acceptance of responsibility.

Thomas also asserts that his within-Guidelines sentence is procedurally and substantively

unreasonable. We affirm in part and dismiss in part.

       “Plea agreements are grounded in contract law, and as with any contract, each party

is entitled to receive the benefit of his bargain.” United States v. Edgell, 

, 287

(4th Cir. 2019) (internal quotation marks omitted). We will “enforce a plea agreement’s

plain language in its ordinary sense,” and any ambiguities in the agreement are construed

against the Government as the drafter. United States v. Under Seal, 

, 417-18

(4th Cir. 2018) (internal quotation marks omitted). Because Thomas did not challenge the

Government’s purported breach of the plea agreement in the district court, we review for

plain error. 

. “Under that standard, [Thomas] must show that the

[G]overnment plainly breached its plea agreement with him and that the breach both

affected his substantial rights and called into question the fairness, integrity, or public

reputation of judicial proceedings.”

       We conclude that the Government did not breach the plea agreement.                The

Government did not stipulate in the plea agreement that a Guidelines enhancement for

obstruction of justice was unwarranted. Thus, the Government was under no obligation

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not to advocate for the obstruction enhancement. We further conclude that the Government

was free to assert that a downward adjustment for acceptance of responsibility was

unwarranted after Thomas failed to meet his obligations under the plea agreement. We

affirm this portion of the appeal.

       In the plea agreement, Thomas waived his right to appeal the convictions and

whatever sentence was imposed on any ground. “A criminal defendant may waive the right

to appeal if that waiver is knowing and voluntary.” United States v. Tate, 

,

574 n.1 (4th Cir. 2017); United States v. Copeland, 

, 528 (4th Cir. 2013). To

determine whether the waiver is knowing and voluntary, this Court looks to the sufficiency

of the plea colloquy and whether the district court questioned the defendant about the

appeal waiver, but ultimately the determination turns on “the totality of the circumstances.”

(internal quotation marks omitted). In evaluating the totality of

the circumstances, we consider “the particular facts and circumstances surrounding [the]

case, including the background, experience, and conduct of the accused.” United States v.

Blick, 

, 169 (4th Cir. 2005) (internal quotation marks omitted). We “will

enforce the waiver if it is valid and the issue appealed is within the scope of the waiver.”

(internal quotation marks omitted).           “In the absence of

extraordinary circumstances, a properly conducted Rule 11 colloquy establishes the

validity of the waiver.” United States v. Adams, 

, 182 (4th Cir. 2016).

       We conclude that Thomas knowingly and voluntarily waived his right to appeal

whatever sentence was imposed. Thomas’ assertions that his Guidelines sentence was

improperly increased due to the obstruction of justice enhancement and calculated without

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the agreed-upon reduction for acceptance of responsibility are issues within the scope of

the valid appeal waiver. We further conclude that Thomas’ assertion that his within-

Guidelines sentence is substantively unreasonable is also within the scope of the appeal

waiver. Accordingly, we will enforce the appeal waiver and dismiss this portion of the

appeal.

       We affirm in part and dismiss in part. 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.

                                                                   AFFIRMED IN PART;
                                                                   DISMISSED IN PART




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