United States v. Kerji Polite ( 2000 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4196
KERJI POLITE,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Charleston.
Patrick Michael Duffy, District Judge.
(CR-97-943)
Submitted: February 29, 2000
Decided: March 22, 2000
Before WILKINS and MICHAEL, Circuit Judges,
and BUTZNER, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
Peter D. DeLuca, Jr., LAW OFFICES OF DELUCA & MAUCHER,
L.L.P., Goose Creek, South Carolina, for Appellant. J. Rene Josey,
United States Attorney, Miller W. Shealy, Jr., Assistant United States
Attorney, Charleston, South Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Kerji Polite appeals from a 121-month sentence imposed following
his plea of nolo contendere to possession with the intent to distribute
cocaine, 21 U.S.C. § 841(a) (1994). Polite contends that the district
court erroneously attributed drug quantities to him and that the Gov-
ernment breached the plea agreement. We have reviewed the record,
find no reversible error, and affirm.
Polite correctly acknowledges that the district court was not bound
by the parties' agreement as to the amount attributable to him for the
purposes of determining his relevant conduct under U.S. Sentencing
Guidelines Manual §§ 1B1.3, 2D1.1 (1998). See USSG § 6B1.2(a);
United States v. Fells, 920 F.2d 1179, 1184 (4th Cir. 1990); United
States v. Williams, 880 F.2d 804, 806 (4th Cir. 1989). However, a
defendant may still be entitled to relief from the district court's deci-
sion not to follow the sentencing recommendation in the plea agree-
ment if he shows that the government breached a material term of the
agreement. See United States v. Johnson, 132 F.3d 628, 630-31 (11th
Cir.), cert. denied, ___ U.S. ___, 119 S. Ct. 264 (1998); United States
v. Ringling, 988 F.2d 504, 506 (4th Cir. 1993).
While we interpret plea agreements according to contract law, we
also subject the terms of the agreement to greater scrutiny because a
defendant's constitutional rights are at stake. See Ringling, 988 F.2d
at 506. Thus, the government is held to a higher degree of responsibil-
ity when ambiguities and imprecisions in the language of the plea
agreement inure to the detriment of the defendant. See United States
v. Harvey, 791 F.2d 294, 300 (4th Cir. 1986). However, "the govern-
ment is held only to those promises that it actually made to the defen-
dant." See United States v. Peglera, 33 F.3d 412, 413 (4th Cir. 1994).
In this case, and unlike the cases cited by Polite in support of his
position, the plea agreement clearly and unambiguously left the deter-
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mination of the drug quantity to the judge. An integration clause pro-
vided that the written plea agreement represented"the entire
agreement of the parties" and "that any and all promises, representa-
tions, and statements whether prior to, contemporaneous with or
after" the adoption of the agreement were "null and void." (J.A. at
34). Moreover, the Government refused to stipulate that Polite was
responsible only for the drugs found in connection with the surveil-
lance and subsequent traffic stop of Polite and other members of his
gang on October 21, 1997. Thus, the Government did not violate any
promises that it made in order to induce Polite's plea.
We also find unpersuasive Polite's argument that he is entitled to
relief on the basis that the Government did not turn over all evidence
relevant to the finding of offender characteristics and the determina-
tion of the circumstances of the offense prior to his Fed. R. Crim. P.
11 colloquy. Although the government is encouraged to turn over
such evidence, the applicable policy statement in the sentencing
guidelines does not "confer upon the defendant any right not other-
wise recognized in law." USSG § 6B1.2, comment.
Accordingly, we affirm Polite's conviction and sentence. We dis-
pense 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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