United States v. James Bailey, Jr. , 549 F. App'x 171 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4185
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMES W. BAILEY, JR., a/k/a James W. “Bill” Bailey, Jr.,
Defendant - Appellant.
No. 13-4342
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMES W. BAILEY, JR., a/k/a James W. “Bill” Bailey, Jr.,
Defendant - Appellant.
Appeals from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:11-cr-00010-MR-DLH-1)
Submitted: November 26, 2013 Decided: December 23, 2013
Before NIEMEYER, WYNN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mark R. Sigmon, GRAEBE HANNA & SULLIVAN, PLLC, Raleigh, North
Carolina, for Appellant. Anne M. Tompkins, United States
Attorney, Amy E. Ray, Richard Edwards, Assistant United States
Attorneys, Asheville, North Carolina; Mythili Raman, Acting
Assistant Attorney General, Denis J. McInerney, Acting Deputy
Assistant Attorney General, Richard A. Friedman, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
James W. Bailey, Jr., appeals the 384-month sentence
imposed by the district court. Bailey pled guilty, pursuant to
a written plea agreement, to securities fraud, mail fraud, and
filing a false tax return. After Bailey pled guilty, both
parties approached the district court with a corrected plea
agreement. The district court accepted the corrected plea
agreement after a comprehensive hearing by a magistrate judge
pursuant to Fed. R. Crim. P. 11. On appeal, Bailey contends
that the district court erred when it accepted the corrected
plea agreement because the agreement’s new provisions were not
supported by independent consideration. We affirm.
Bailey did not object to the district court's
acceptance of the corrected plea agreement. Quite the opposite,
Bailey personally confirmed that the corrected plea agreement
accurately reflected the intent of the parties at the time that
the original plea was entered. Therefore, our review is for
plain error. See United States v. Olano, 507 U.S. 725, 732
(1993). To establish plain error, Bailey must show (1) there
was error, (2) the error was plain, and (3) the error affected
his substantial rights. Id. Even if these requirements are
met, we will notice the error only if it “seriously affects the
fairness, integrity or public reputation of judicial
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proceedings.” Id. (internal quotation marks and alteration
omitted).
We conclude that the district court validly accepted a
reformation of the original plea agreement. “Reformation is
available when the parties, having reached an agreement and
having then attempted to reduce it to writing, fail to express
it correctly in the writing.” 27 Samuel Williston & Richard A.
Lord, A Treatise on the Law of Contracts § 70:21 (4th ed. 2003).
Both the Government and Bailey agreed before the district court
that the corrected plea agreement accurately reflected the
bargain that they had initially struck. Therefore, we conclude
that the district court did not commit error, plain or
otherwise, when it accepted the corrected plea agreement based
on Bailey’s representations.
Accordingly, we affirm the district court’s amended
judgment. 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
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