United States v. Lawson ( 2007 )


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  •                              UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 06-4090
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    versus
    MARTHA ANN LAWSON, a/k/a Wanda Thompson, a/k/a
    Martha Butler, a/k/a Martha Sullivan,
    Defendant - Appellant.
    Appeal from the United States District Court for the District of
    Maryland, at Greenbelt. Roger W. Titus, District Judge. (8:05-cr-
    00304-RWT)
    Submitted:   March 9, 2007                 Decided:   April 4, 2007
    Before WILLIAMS, KING, and GREGORY, Circuit Judges.
    Dismissed by unpublished per curiam opinion.
    Fred Warren Bennett, BENNETT & BAIR, LLP, Greenbelt, Maryland, for
    Appellant.    Rod J. Rosenstein, United States Attorney, Sandra
    Wilkinson, Assistant United States Attorney, Greenbelt, Maryland,
    for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Martha Ann Lawson seeks to appeal her sentence to fifty
    months    in    prison   and   five     years    of    supervised   release   after
    pleading guilty to two counts of bank fraud in violation of 
    18 U.S.C. § 1344
     (2000).           Although the district court adopted the
    parties’ position that Lawson’s total adjusted offense level was
    eighteen, and Lawson waived her right to appeal from any sentence
    within or below the advisory guideline range resulting from that
    offense level, she contends her waiver is unenforceable because the
    Government breached the plea agreement. Lawson raises the issue of
    the Government’s alleged breach for the first time on appeal.                    She
    furthermore argues the district court erred in sua sponte departing
    upward in her criminal history category pursuant to U.S. Sentencing
    Guidelines Manual § 4A1.3(a).            We dismiss the appeal.
    Whether a defendant has effectively waived the right to
    appeal is an issue we review de novo.                 United States v. Marin, 
    961 F.2d 493
    , 496 (4th Cir. 1992).            “A party’s waiver of the right to
    seek appellate review is not enforceable where the opposing party
    breaches a plea agreement.”           United States v. Bowe, 
    257 F.3d 336
    ,
    342 (4th Cir. 2001).           “Once released from the bar of the appeal
    waiver,    [the    defendant]     may    raise    any    claim   relating   to   the
    sentence, except a contention that first should have been presented
    to the district court.”          United States v. Gonzalez, 
    16 F.3d 985
    ,
    990 (9th Cir. 1993).       “It is settled that a defendant alleging the
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    Government’s    breach   of    a    plea   agreement   bears   the   burden   of
    establishing that breach by a preponderance of the evidence.”
    United States v. Snow, 
    234 F.3d 187
    , 189 (4th Cir. 2000).              Where a
    party raises the alleged breach for the first time on appeal, we
    review for plain error.        United States v. McQueen, 
    108 F.3d 64
    , 65-
    66 (4th Cir. 1997).      Accordingly, Lawson must not only establish
    that the plea agreement was breached, but also that “the breach was
    ‘so obvious and substantial that failure to notice and correct it
    affect[ed] the fairness, integrity or public reputation of the
    judicial proceedings.’”            See 
    id.
     at 66 & n.4 (quoting United
    States v. Fant, 
    974 F.2d 559
    , 565 (4th Cir. 1992)).
    “[W]hen a plea rests in any significant degree on a
    promise or agreement of the prosecutor, so that it can be said to
    be part of the inducement or consideration, such promise must be
    fulfilled.”    Santobello v. New York, 
    404 U.S. 257
    , 262 (1971).              “It
    is well-established that the interpretation of plea agreements is
    rooted in contract law, and that ‘each party should receive the
    benefit of its bargain.’”          United States v. Peglera, 
    33 F.3d 412
    ,
    413 (4th Cir. 1994) (quoting United States v. Ringling, 
    988 F.2d 504
    , 506 (4th Cir. 1993)).           “A central tenet of contract law is
    that no party is obligated to provide more than is specified in the
    agreement itself.”       
    Id.
           Accordingly, “the government’s duty in
    carrying out its obligations under a plea agreement is no greater
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    than that of ‘fidelity to the agreement.’”                 
    Id.
     (quoting United
    States v. Fentress, 
    792 F.2d 461
    , 464 (4th Cir. 1986)).
    In   the   plea    agreement,      the   parties   stipulated   that
    Lawson’s adjusted offense level was eighteen and that no other
    offense characteristics, sentencing guidelines factors, potential
    departures, or adjustments would be raised or were in dispute.
    However, Lawson acknowledged there was no agreement as to her
    criminal history category, and the court was not bound by the
    stipulation but would consider it along with the presentence report
    and any other relevant information.                   Finally, the Government
    “expressly    agree[d]     to    seek    a   sentence    within   the   advisory
    guideline range determined to be applicable by the Court.”                   Prior
    to the district court’s departure, Lawson’s advisory guideline
    range was thirty-three to forty-one months.               After the departure,
    the range was forty-one to fifty-one months.
    We have reviewed the record and conclude the Government
    did not breach the plea agreement. The Government expressly sought
    a sentence of forty-one months, the high end of Lawson’s advisory
    guideline range prior to the district court’s departure. Moreover,
    the Government did not raise any potential departures and expressly
    agreed with Lawson that it was prohibited from requesting one.
    Nevertheless, Lawson contends the Government’s response to the
    district court’s direction to address the upward departure issue
    raised by the court amounted to an implicit argument for the
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    departure and a violation of its obligations under the agreement.
    We disagree.   The Government fulfilled its promises under the plea
    agreement, and its statements were consistent with its recommended
    sentence at the high end of Lawson’s initial guideline range.
    Finally, although Lawson expressly informed the district court that
    the parties were bound by their agreement not to argue for any
    departures, she never objected that the Government’s argument was
    in breach of the agreement.     Even if Lawson could establish an
    implicit breach, she cannot show it was so obvious and substantial
    that a failure to notice and correct it affected the fairness,
    integrity, or public reputation of the judicial proceedings.
    Accordingly, we dismiss Lawson’s appeal.     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.
    DISMISSED
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