Filed: Sep. 04, 2014
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4539 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. DESMOND FLETCHER, Defendant - Appellant. Appeal from the United States District Court for the District of Maryland, at Greenbelt. Roger W. Titus, Senior District Judge. (8:11-cr-00429-RWT-1) Submitted: July 29, 2014 Decided: September 4, 2014 Before DUNCAN, KEENAN, and DIAZ, Circuit Judges. Dismissed in part; affirmed in part by unpublished per curiam opinion. Francis
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4539 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. DESMOND FLETCHER, Defendant - Appellant. Appeal from the United States District Court for the District of Maryland, at Greenbelt. Roger W. Titus, Senior District Judge. (8:11-cr-00429-RWT-1) Submitted: July 29, 2014 Decided: September 4, 2014 Before DUNCAN, KEENAN, and DIAZ, Circuit Judges. Dismissed in part; affirmed in part by unpublished per curiam opinion. Francis A..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4539
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DESMOND FLETCHER,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, Senior District Judge.
(8:11-cr-00429-RWT-1)
Submitted: July 29, 2014 Decided: September 4, 2014
Before DUNCAN, KEENAN, and DIAZ, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Francis A. Pommett, III, NATHANSON & POMMETT, P.C., Baltimore,
Maryland, for Appellant. Rod J. Rosenstein, United States
Attorney, Deborah A. Johnston, Assistant United States Attorney,
Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Desmond Fletcher appeals from his conviction and
72-month sentence imposed pursuant to his guilty plea to
possession of a firearm by a convicted felon. On appeal,
Fletcher raises two claims: (1) whether the Government breached
his plea agreement by de facto arguing for an upward departure
and (2) whether his sentence was reasonable. In response, the
Government has filed a motion to dismiss based upon Fletcher’s
waiver of his right to appeal in his plea agreement. By
previous order, we denied the motion to dismiss Fletcher’s claim
that the Government breached the plea agreement, finding that
such a claim was not barred by Fletcher’s waiver. As to
Fletcher’s sentencing claims, we deferred action on the motion
to dismiss until the merits of the breach claim had been
decided. Briefing is now complete, and we grant the remaining
portion of the motion to dismiss, dismiss the appeal of
Fletcher’s sentence, and affirm Fletcher’s conviction.
Because Fletcher did not argue in district court that
the Government breached its obligations under the plea
agreement, this claim is reviewed for plain error. “To
establish plain error, [Fletcher] must show that an error
occurred, that the error was plain, and that the error affected
his substantial rights.” United States v. Muhammad, 478 F.3d
247, 249 (4th Cir. 2007). Even if Fletcher satisfies these
2
requirements, “correction of the error remains within [the
Court’s] discretion, which [the Court] should not exercise . . .
unless the error seriously affect[s] the fairness, integrity or
public reputation of judicial proceedings.” Id. (internal
quotation marks and citation omitted).
Plea agreements are grounded in contract law, and both
parties should receive the benefit of their bargain. United
States v. Dawson, 587 F.3d 640, 645 (4th Cir. 2009). The
Government breaches a plea agreement when a promise it made to
induce the plea goes unfulfilled. See Santobello v. New York,
404 U.S. 257, 262 (1971). Because of “constitutional and
supervisory concerns,” the Government is held to a greater
degree of responsibility than the defendant for imprecision or
ambiguities in plea agreements. United States v. Garcia,
956
F.2d 41, 44 (4th Cir. 1992). Where an agreement is ambiguous in
its terms, the terms must be construed against the Government.
United States v. Harvey,
791 F.2d 294, 303 (4th Cir. 1986).
However, “[w]hile the government must be held to the promises it
made, it will not be bound to those it did not make.” United
States v. Fentress,
792 F.2d 461, 464 (4th Cir. 1986).
Fletcher admits that the Government recommended a
sentence within the calculated Guidelines as promised in the
plea agreement. However, Fletcher argues that the Government’s
extensive argument on the 18 U.S.C. § 3553 (2012) factors,
3
including details of Fletcher’s criminal history and the search
warrant application, amounted to mere “lip service to its
obligation” to recommend a sentence within the Guidelines range.
These arguments, according to Fletcher, constituted an implicit
request for an upward departure and a breach of the plea
agreement. The court, faced with a Guidelines range of 46-57
months, imposed a variant sentence of 72 months in prison.
Even assuming that the Government’s conduct
constituted a breach of the plea agreement, Fletcher cannot show
either that any breach affected his substantial rights or that
we should exercise our discretion to correct any error. In
sentencing Fletcher, the district court appeared to rely most
heavily on the circumstances of Fletcher’s crime and his
criminal background, details of which were in the presentence
report and not objected to by Fletcher. Fletcher thus cannot
show that, absent the Government’s argument, the district court
would have imposed a lower sentence. Moreover, even if this
showing were possible, Fletcher was sentenced within a
Guidelines range clearly anticipated by his plea agreement.
Therefore, we conclude that any error does not seriously call
4
into question the fairness or integrity of judicial proceedings. 1
See Muhammad, 478 F.3d at 249.
Having determined that any breach of the plea
agreement did not constitute reversible error, we consider the
application of the appeal waiver therein. We review the
validity of an appeal waiver de novo. United States v. Manigan,
592 F.3d 621, 626 (4th Cir. 2010). Generally, we will enforce
an appellate waiver contained in a plea agreement “if the waiver
is valid and the issue sought to be appealed falls within the
scope of the waiver.” United States v. Cohen,
459 F.3d 490, 494
(4th Cir. 2006). Fletcher does not dispute that he knowingly
and voluntarily waived his appellate rights regarding his
sentence. However, he questions whether the plea agreement (and
particularly the wording of the waiver) was valid, given that
1
Fletcher makes certain additional related, and meritless,
claims. First, he asserts that the Government’s invitation for
the district court to consider facts in the search warrant
application that Fletcher did not admit violated Apprendi v. New
Jersey, 530 U.S. 466 (2000). However, Apprendi is entirely
inapplicable to sentencing and Guidelines rulings, absent some
allegation (absent here) that Fletcher was sentenced above the
maximum statutorily available sentence for the crime to which he
pled guilty. See United States v. Promise,
255 F.3d 150, 157
n.5 (4th Cir. 2001). Fletcher also argues that permitting the
Government to use the search warrant application against him at
sentencing violated his substantial rights because he gave up
his right to challenge the legality of the search warrant
pursuant to the plea agreement. This argument is similarly
without merit, as the plea agreement made no mention of the
search warrant or the information therein. Moreover, the court
stated that it did not rely on the search warrant application.
5
there was a mutual mistake in predicting the base offense level,
and whether the issues sought to be appealed fall within the
scope of the waiver.
Fletcher argues that his challenges to the
reasonableness of his sentence either fall outside the scope of
the waiver or rendered his waiver involuntary because there was
a mutual mistake and ineffective assistance in the negotiation
of the plea agreement. According to Fletcher, had the parties
correctly predicted the Guidelines range, he would have been
permitted to appeal from his current sentence, as it exceeded
the Guidelines range. 2 We find that Fletcher’s claim is without
merit. While the parties were mistaken in their calculation of
the potential Guidelines range, Fletcher agreed that the court
was not bound by any stipulations in the plea agreement and
explicitly waived his right to appeal “any issues that relate to
the establishment of the advisory guidelines range,” as well as
“the calculation of any term of imprisonment.” “A mutual
mistake concerning the proper Guidelines range is an
2
In the plea agreement, the Government predicted that
Fletcher’s adjusted offense level would be 25, resulting in a
Guidelines range of 70-87 months, and Fletcher agreed to waive
an appeal of any sentence that did not exceed that Guidelines
range. However, due to a legal issue not foreseen by the
parties, Fletcher’s actual adjusted offense level was 21,
resulting in a Guidelines range of 46-57 months. Thus, while
his sentence exceeded his Guidelines range, it did not exceed 87
months.
6
insufficient basis to void a plea agreement.” United States v.
Riggi, 649 F.3d 143, 149 (2d Cir. 2011) (upholding appeal waiver
based on incorrect assumptions regarding the Guidelines
calculations); see also United States v. Garland,
122 F.2d 118,
122 (4th Cir. 1941) (holding that mutual mistake in a prophecy
or opinion is not grounds for recession of a contract).
As Fletcher waived his right to appeal from any
sentencing issues so long as his sentence did not exceed the
Guidelines range calculated with an adjusted offense level of 25
(and it indisputably did not), his claim that his sentence was
unreasonable falls strictly within the scope of the waiver.
Thus, we grant the Government’s motion to dismiss Fletcher’s
sentencing claims. We affirm Fletcher’s conviction. 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 IN PART;
AFFIRMED IN PART
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