UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                       No. 19-4764


UNITED STATES OF AMERICA,

                     Plaintiff - Appellee,

              v.

KEVIN JAMES GREEN, II,

                     Defendant - Appellant.



Appeal from the United States District Court for the Western District of North Carolina, at
Statesville. Kenneth D. Bell, District Judge. (5:19-cr-00008-KDB-DSC-1)


Submitted: June 30, 2020                                          Decided: August 20, 2020


Before MOTZ, FLOYD, and RUSHING, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Chiege Ojugo Kalu Okwara, Charlotte, North Carolina, for Appellant. R. Andrew Murray,
United States Attorney, Amy E. Ray, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Kevin James Green, II, appeals his 84-month prison sentence after pleading guilty

to possession with intent to distribute 500 grams or more of methamphetamine in violation

of 21 U.S.C. § 841(a), (b)(1)(A) (2018). On appeal, Green contends that the Government

breached the parties’ plea agreement, which required that the Government “not oppose a

sentence at the bottom of the applicable guidelines range.” We affirm.

       “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). Because Green did not challenge the

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

claim on appeal for plain error.

“Under that standard, [Green] must show that

the government 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.”

       As we have held, the term “applicable guideline range” in a plea agreement “means

the guideline range determined by the district court,” i.e., before variances and departures.

United States v. Tate, 

, 578 (4th Cir. 2017); cf. U.S. Sentencing Guidelines

Manual § 1B1.10 cmt. n.1(A) (2018) (defining “applicable guideline range” as “guideline

range that corresponds to the offense level and criminal history category determined

pursuant to § 1B1.1(a), which is determined before consideration of any departure

provision in the Guidelines Manual or any variance”); United States v. Muldrow, 

, 439-42 (4th Cir. 2016) (following commentary).

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       In their plea agreement, the parties stipulated the drug quantity was between 500

and 1,500 grams, resulting in a base offense level of 30; and Green understood the statutory

penalty was a mandatory minimum 10 years up to life in prison. The parties reserved “their

right to advocate whether the Defendant should receive a 2-level weapon enhancement

pursuant to U.S.S.G. § 2D1.1(b)(1)” and agreed “either party may argue their respective

positions regarding other specific offense characteristics, cross-references, special

instructions, reductions, enhancements, and adjustments, as well as departures or variances

from the ‘applicable guideline range’ (U.S.S.G. § 5C1.1) determined by the District Court

at sentencing”; but the Government did “not oppose a sentence at the bottom of the

applicable guidelines range.” The probation officer determined Green’s Guidelines range

was 108 to 135 months based on a total offense level 29 and criminal history category III;

but due to the statutory mandatory minimum, the range became 120 to 135 months.

       Green objected to application of a two-level enhancement for possessing a firearm

during the offense. Moreover, based on his four criminal history points, he contended that

he was eligible to receive the benefit of the safety-valve statute, 18 U.S.C. § 3553(f) (2018),

in light of changes to the statute under the First Step Act of 2018, Pub. L. No. 115-391,

132 Stat. 5194. He additionally contended that he should receive a two-level decrease in

offense level pursuant to USSG §§ 2D1.1(b)(18), 5C1.2.

       At sentencing, the district court sustained Green’s objection to a two-level increase

in offense level for possessing a firearm during the offense. The court also found he was

eligible for the benefit of the safety-valve statute, allowing the court to sentence him below

the mandatory minimum 10 years. However, the court found he was not eligible for a two-

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level decrease pursuant to USSG §§ 2D1.1(b)(18), 5C1.2, because the Guidelines had not

been amended and still required that he have no more than one criminal history point.

Therefore, the court found that his total offense level was 27; and his advisory Guidelines

range was 87 to 108 months in prison. This was his “applicable guidelines range.”

       Green asked for a downward departure or variance based on his medical conditions

and history of substance abuse. The Government agreed that a downward variance was

warranted based on the safety-valve Guideline issue but opposed a further variance for the

reasons asserted by Green; and the Government argued “an upper variance,” i.e., a sentence

in the “middle or high end” of the variance range of 70 to 87 months, was warranted based

on Green’s risks of recidivism. The district court agreed that a two-level variance was

warranted based on the safety-valve Guideline issue and sentenced Green to 84 months.

       On appeal, Green contends that the Government breached the plea agreement by not

advocating for a sentence at the bottom of the variance range. We disagree. By advocating

for a variance sentence below Green’s advisory Guidelines range, the Government fully

complied with its agreement not to oppose a sentence at the bottom of that range.

       Accordingly, we affirm the district court’s judgment. 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.

                                                                              AFFIRMED




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