United States v. Embree ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4985
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ERNIE EMBREE,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. James P. Jones, Chief District
Judge. (1:01-cr-00002-jpj-AL)
Argued: November 1, 2007 Decided: January 31, 2008
Before GREGORY and DUNCAN, Circuit Judges, and James A. BEATY, Jr.,
Chief United States District Judge for the Middle District of North
Carolina, sitting by designation.
Affirmed by unpublished opinion. Chief District Judge Beaty wrote
the opinion, in which Judge Gregory and Judge Duncan joined.
ARGUED: Fay Frances Spence, Roanoke, Virginia, for Appellant.
Zachary T. Lee, Special Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Abingdon, Virginia, for Appellee. ON
BRIEF: Larry W. Shelton, Federal Public Defender, Roanoke,
Virginia, for Appellant. John L. Brownlee, United States Attorney,
Roanoke, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
BEATY, Chief District Judge:
Defendant Ernie Embree appeals the district court’s
application of a 2-level sentencing enhancement for possession of
a dangerous weapon in connection with the offense to which he pled
guilty. On January 20, 2002, Embree signed a plea agreement with
the Government in which he agreed to plead guilty to Count Two of
a multiple count indictment, which charged him with conspiracy to
possess with intent to distribute and distribute more than 500
grams of a mixture of methamphetamine in violation of 21 U.S.C. §§
846 and 841(b)(1)(A). Embree was sentenced to 125 months in
prison. The court entered an Amended Final Judgment Order on
September 19, 2006. Embree timely appealed. On appeal, Embree
contends that the Government breached the plea agreement by arguing
for the 2-level enhancement for possession of a dangerous weapon in
connection with the offense at sentencing in contradiction to a
stipulation not to do so contained in the plea agreement. After a
thorough review of Embree’s claims, we affirm the district court’s
decision.
I.
In October 2000, a confidential informant informed Agent Brian
Snedeker of the Drug Enforcement Agency (DEA) that Embree was
involved in the distribution and manufacture of methamphetamine and
marijuana. The informant also told Agent Snedeker that Embree
2
carried handguns and a concealed knife in “like a shoulder harness”
during drug transactions. The investigation revealed that Embree
loaned money to Donna Richardson to finance her trips to California
to purchase methamphetamine. Embree and Richardson would then
distribute the methamphetamine that was purchased to friends and
co-workers. After Embree became upset at a loss of money, he ended
his attempts to obtain methamphetamine in California and began
attempts to manufacture his own methamphetamine.
On June 29, 2001, Embree was arrested by DEA agents at his
residence. At the time of Embree’s arrest, a 6-8 inch knife with
brass knuckles matching the description given earlier by the
informant was found in Embree’s vehicle. Also located within
Embree’s residence were numerous holsters for large caliber
revolvers and automatic handguns.
On January 30, 2002, Embree signed a plea agreement with the
Government in which he pled guilty to Count Two of the indictment
charging him with conspiracy to possess with intent to distribute
and distribute more than 500 grams of a mixture of methamphetamine.
The plea agreement provided in relevant part:
D. REMEDIES FOR BREACH OF PLEA AGREEMENT
I understand that if I breach any provision of this
agreement, at any time, that the United States Attorney’s
office [sic] may, at its election, pursue any or all of
the following remedies: (a) declare this plea agreement
null and void and proceed to trial; (b) refuse to
recommend that I be credited with acceptance of
responsibility . . . (g) refuse to abide by any other
sentencing or other stipulations contained in this
3
agreement; (h) take any other action provided for under
this agreement or by statute, regulation or court rule.
H. ACCEPTANCE OF RESPONSIBILITY
I hereby agree and stipulate that if I do any of the
following, I should not receive credit for acceptance of
responsibility and the United States will be free to make
any recommendations it wishes at sentencing or to declare
a breach of this plea agreement and seek the remedies set
forth in paragraph D: (1) attempt to withdraw my guilty
plea, (2) deny that I have committed any crime that I
have pled guilty to, (3) fail to cooperate with law
enforcement agents, (4) fail to testify truthfully, as to
any matter, if called upon to do so (at my sentencing or
any other court proceedings, . . . (6) make a false
statement . . .
J. STIPULATIONS AND RECOMMENDATIONS
The United States stipulates that at the time of the
execution of this plea agreement it possesses no
information which would prevent me from meeting the
criteria set forth in 18 U.S.C.A. § 3553(f)(1)-(4) and
U.S.S.G. § 5C1.2(1)-(4). In addition the United States
will afford me the opportunity to meet the criteria
contained in 18 U.S.C.A. § 3553(f)(5) and U.S.S.G. §
5C1.2(5). The parties further stipulate that the signing
and submission of this plea agreement meets the criteria
contained in U.S.S.G. § 3E1.1(b)(2).
L. SUBSTANTIAL ASSISTANCE
I understand and agree that I must provide complete and
truthful information to attorneys and law enforcement
officers of the Government and to neither attempt to
protect any person or entity through false information or
omission, nor falsely implicate any person or entity. .
. . I further understand that any violation of the terms
of this section may, at the election of the United States
Attorney’s Office, be treated as a breach of this Plea
Agreement, and the United States Attorney’s office [sic]
may exercise any right it may have under this Plea
Agreement in the event of breach by the defendant,
including but not limited to those remedies set forth in
section D of this Plea Agreement.
4
On March 4, 2002, Embree appeared before the district court,
and entered his plea of guilty to Count Two of the indictment.
Following Embree’s plea hearing, a presentence report (“PSR”) was
prepared by the probation officer. Based on the available
information about the knife, gun holster and alleged firearms, the
probation officer recommended a 2-level enhancement for possession
of dangerous weapons in connection with the offense pursuant to
U.S.S.G. § 2D1.1(b)(1). The PSR also included a 3-level deduction
for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1(a).
Embree objected to the finding in the PSR regarding possession of
dangerous firearms and a knife in connection with the offense,
arguing that he never carried any guns on his person or in his
vehicle, and that the knife was used in his auto repair business.
The United States objected to Embree receiving credit for
acceptance of responsibility arguing that he failed to fully accept
responsibility for his role in the distribution of methamphetamine.
Embree’s sentencing hearing began on May 20, 2002, and upon
the court’s own motion was continued to May 29. At the May 29
sentencing hearing, the Government argued that Embree should not
receive credit for acceptance of responsibility and presented
evidence that Embree possessed a knife in connection with the
conspiracy to distribute methamphetamine in support of the
probation officer’s recommendation for a 2-level enhancement for
possession of dangerous weapons in connection with the offense. In
5
contending that Embree should not receive the benefit of the 3-
level deduction for acceptance of responsibility, the Government
argued that during the course of providing a factual basis for his
plea, Embree stated under oath that he “personally didn’t sell any
methamphetamine, myself,” and that he failed to accept
responsibility for all of the conduct relevant to the offense. The
Government then called Embree’s co-conspirator, Donna Richardson,
to testify as to Embree’s involvement in the conspiracy.
Richardson testified that Embree financed her trips to California
to purchase methamphetamine and that after taking a portion for
herself, Embree sold the remaining methamphetamine to friends and
co-workers. Embree also testified on his own behalf regarding his
acceptance of responsibility. Embree testified that he had sold
methamphetamine to friends, but that although he had possessed
chemicals with the intent to manufacture methamphetamine, he had
never actually manufactured any methamphetamine. Finally, Embree
testified regarding his involvement in the conspiracy, which
conflicted with testimony given by Richardson.
Regarding the Government’s contention that Embree possessed a
dangerous weapon in connection with the offense, the Government
called Agent Snedeker to testify. Agent Snedeker recounted the
information he received from the informant regarding Embree’s
possession of a knife and firearms which were kept in a gun holster
when Embree distributed methamphetamine. The Government also
6
presented evidence of a knife that was found in Embree’s vehicle
and gun holsters found in Embree’s residence at the time of his
arrest. Embree testified that he used the knife for cutting
fiberglass at his business and denied possessing firearms other
than a .22 caliber pistol that he bought for his wife and that was
kept at his residence.
At the close of evidence, the district court ruled that before
making any determinations regarding Embree’s acceptance of
responsibility or the possession of firearms or a knife in
connection with the offense, the matter should be continued until
Embree had been debriefed by the Government, affording him the
opportunity to fully and truthfully provide information concerning
the offenses with which he was involved.1
At the reconvening of Embree’s sentencing hearing on June 13,
2002, Agent Snedeker was recalled to testify concerning Embree’s
debriefing. Agent Snedeker testified that Embree told him that he
only received “[a] half ounce to two ounces each trip” from Donna
Richardson and that he purchased small amounts of methamphetamine
from other individuals. He also testified that Embree stated that
he had manufactured methamphetamine on one occasion. Finally,
1
Embree’s initial counsel died after Embree signed the plea
agreement, but before he entered his plea of guilty. As a result
of the reassignment of counsel, at the time of his sentencing
hearing on May 29, 2002, Embree had not yet had the opportunity to
be debriefed by the Government.
7
Agent Snedeker testified that Embree admitted selling
methamphetamine to people at work and other associates.
At the conclusion of Agent Snedeker’s testimony, addressing
both the Government and Embree’s objections, the district court
found Embree’s credibility to be “suspect” with regard to the true
purpose of the weapons and the extent of his involvement in the
methamphetamine transactions with Richardson. Specifically, the
district court found that Embree’s admission that he financed
Richardson’s trips to California to buy methamphetamine was
sufficient within the meaning of the acceptance of responsibility
provision of the Sentencing Guidelines to afford him the benefit of
receiving the 3-level deduction. However, the district court also
denied Embree the benefit of application of the safety valve
provision pursuant to U.S.S.G. § 5C1.2, finding that Embree had not
met the requirements of the provision by “truthfully setting forth
his involvement in the same course of conduct as involved with the
offense of conviction.” Specifically, the court noted that while
Embree agreed to financing the trips to California, “that’s
essentially all that he agrees to.” The court found more credible
the evidence that Embree was involved not only in the manufacture
of methamphetamine, but that he also sold methamphetamine “to a
much greater extent than he’s admitted.” Finally, the district
court denied Embree’s objection to the 2-level enhancement for
possession of a dangerous weapon in connection with the offense
8
finding that Embree did in fact possess both firearms and a knife
in connection with the conspiracy to distribute methamphetamine.
Concluding that Embree had a total offense level of 31, criminal
history category of 1, and sentencing guideline range of 120 months
to 135 months of imprisonment, Embree was then sentenced to 125
months in prison.
II.
On appeal, Embree argues that the Government breached the plea
agreement by arguing at sentencing for a 2-level enhancement for
possession of a dangerous weapon in connection with the offense
after stipulating in the plea agreement that it possessed “no
information which would prevent [Embree] from meeting the criteria
set forth in 18 U.S.C.A. § 3553(f)(1)-(4) and U.S.S.G. § 5C1.2(1)-
(4).” The Government contends that Embree failed to raise the
argument that a breach of the plea agreement had occurred at the
time of his sentencing and thus, we should affirm the sentence
imposed by the district court unless we find plain error.2
Additionally, the Government argues that the plea agreement
2
When arguing against the 2-level enhancement at sentencing,
defense counsel argued that the Government stipulated in the plea
agreement that it had no information which would prevent the
application of the safety valve provision. Although trial counsel
failed to use the word “breach,” counsel did make the argument that
the Government’s position at sentencing was inconsistent with its
stipulation in the plea agreement. Therefore, we hold that Embree
has not raised this issue for the first time on appeal.
9
contains no stipulations or agreements relating to the application
of the 2-level enhancement for possession of dangerous weapons and
that, therefore, it is not in breach of the plea agreement by
arguing for such an application at sentencing. Finally, the
Government contends that Embree breached the plea agreement,
thereby relieving it of its obligations under the agreement, by:
(1) making a false statement under oath; (2) failing to accept
responsibility; and (3) providing false information at the
debriefing. We will review each of Embree’s claims in turn.
i.
In calculating Embree’s sentencing guideline range, the
district court applied a 2-level enhancement for possession of a
dangerous weapon in connection with the offense to which he pled
guilty pursuant to U.S.S.G. § 2D1.1(b)(1). Embree argues that the
Government breached its written plea agreement by arguing for the
dangerous weapons enhancement at sentencing. The Government
contends that the plea agreement contains no stipulations or
agreements relating to the application of the dangerous weapons
enhancement under U.S.S.G. § 2D1.1, and that, therefore, it is not
in breach of the agreement by arguing for the enhancement at
sentencing.
Although plea agreements between the Government and a
defendant are unique and call for special due process
10
considerations, the judicial interpretation of a plea agreement is
largely governed by the law of contracts. United States v. Conner,
930 F.2d 1073, 1076 (4th Cir. 1991). If the Government breaches
express or implied terms of the plea agreement, a violation of due
process occurs. Mabry v. Johnson, 467 U.S. 504, 509 (1984).
Because violations of plea agreements on the part of the Government
not only violate a defendant’s constitutional rights, but also
involve the “honor of the Government, public confidence in the fair
administration of justice, and the effective administration of
justice,” a breach of the agreement by the Government constitutes
plain error. United States v. McQueen, 108 F.3d 64, 66 (4th Cir.
1997).
In the present case, the Government stipulated that it
possessed no information that would prevent application of 18
U.S.C. § 3553(f)(1)-(4) and U.S.S.G. § 5C1.2(1)-(4). Title 18 of
United States Code section 3553(f)(1)-(4) and U.S.S.G § 5C1.2(1)-
(4) concern the application of the so-called “safety valve”
provision. The safety valve provision entitles the sentencing
judge to impose a sentence in accordance with the guidelines
without regard to the statutory minimum sentence, if certain
criteria are met. The criteria for application of the safety valve
provision are set out in 18 U.S.C. § 3553(f)(1)-(4) and U.S.S.G. §
5C1.2. One of the criteria included in those statutes, which are
identical, states that: “the defendant did not use violence or
11
credible threats of violence or possess a firearm or other
dangerous weapon (or induce another participant to do so) in
connection with the offense.” 18 U.S.C. § 3553(f)(2) (2002);
U.S.S.G. § 5C1.2(2)(2002). The statute pertaining to the
application of the dangerous weapons enhancement which is at issue
in this appeal is found in U.S.S.G. § 2D1.1(b)(1) and provides, “if
a dangerous weapon (including a firearm) was possessed, increase by
2 levels.” U.S.S.G. § 2D1.1(b)(1) (2002).
We agree that on its face, the plea agreement contains no
language regarding the dangerous weapons enhancement provision
under U.S.S.G. § 2D1.1. However, we do not agree that the
Government should benefit from such a strict interpretation of the
plea agreement. See, United States v. Bowler, 585 F.2d 851, 854
(7th Cir. 1978) (holding that a plea agreement is not the
appropriate context for “rigidly literal” construction.); Palermo
v. Warden, 545 F.2d 286, 295 (2d. Cir. 1976) cert. dismissed, 431
U.S. 911 (1977) (holding that the Government’s invocation of
restrictive contract principles is “disingenuous”). By stipulating
that it had no information that would prevent Embree from meeting
the criteria in U.S.S.G. § 5C1.2(1)-(4), the Government was
stipulating that it had no information that Embree possessed a
firearm or other dangerous weapon in connection with the offense.
In order to apply a 2-level enhancement for possession of a
dangerous weapon in connection with the offense under U.S.S.G. §
12
2D1.1(b)(1) a showing is required that Embree did in fact possess
a weapon in connection with the conspiracy to distribute
methamphetamine. The Government argued at sentencing that this
indeed was the case with respect to Embree.
If the plea agreement at issue is clear and unambiguous, the
agreement should be enforced as written. United States v. Harvey,
791 F.2d 294, 301 (4th Cir. 1986). In the present case, the
Government contends that because the plea agreement makes no
mention of U.S.S.G. § 2D1.1, there could be no ambiguity as to
whether the plea agreement prohibited the Government from arguing
for the enhancement under section 2D1.1 at Embree’s sentencing.
Embree argues that the stipulation regarding U.S.S.G. § 5C1.2 is at
least ambiguous as to whether it prevents the Government from
arguing as it did for the enhancement under section 2D1.1. Because
the challenged stipulation is subject to two interpretations, the
one proffered by the Government and the one advanced by the
Defendant, and because there is no extrinsic evidence in the record
from which the Court could determine the mutual understanding of
the parties, we conclude that the stipulation at issue is
ambiguous.
This result is consistent with United States v. Harvey, where
this Court held that “constitutional and supervisory concerns
require holding the Government to a greater degree of
responsibility than the defendant . . . for imprecisions or
13
ambiguities in plea agreements.” 791 F.2d at 300-01. “This is
particularly appropriate where, as will usually be the case, the
Government has proffered the terms or prepared a written agreement
- for the same reasons that dictate that approach in interpreting
private contracts.” Id. at 301. Thus, where there is no extrinsic
evidence of a mutual understanding of the interpretation urged by
the Government, ambiguities or imprecisions in the plea agreement
will be construed against the Government and in favor of the
defendant. Id. at 301-303. Applying these principles here, we will
resolve the ambiguity as to whether the stipulation as stated in
the plea agreement concerning the safety valve provision prohibited
the Government from arguing for application of the dangerous
weapons enhancement under section 2D1.1, in favor of Embree.
ii.
Turning now to the merits of Embree’s argument that the
Government breached the stipulation in the plea agreement by
arguing for the 2-level enhancement under section 2D1.1, this case
is analogous to United States v. Badaracco, 954 F.2d 928 (3d Cir.
1992). In Badaracco, the Government entered into a plea agreement
with the defendant in which it stipulated that the offense did not
involve more than minimal planning. Id. at 933. However, in
accordance with the presentence report, the district court
increased the defendant’s offense level because the probation
14
department found that the offense involved “more than minimal
planning.” Id. at 939. At the defendant’s sentencing hearing,
the Government changed its position and argued that “there was an
affirmative step taken by Mr. Badaracco indicating that he was
concealing something . . .” Id. The Third Circuit Court of
Appeals concluded that the Government’s argument made contrary to
the plea agreement provided a basis for the district court to
reject the Government’s stipulation and to adopt the recommendation
of the probation department. Id. at 940. The court held that
where the Government stated in court that there was an affirmative
step taken by the defendant indicating that he was concealing
something, and presented direct evidence to that effect, the
Government had indeed breached the plea agreement. Id. at 941.
The court further held that because the Government was aware of the
defendant’s concealment of his interests when he entered into the
plea agreement, “the Government [was] not free to breach its
agreement with a defendant because it decides after the fact that
it has made a bad bargain.” Badaracco, 954 F.2d at 941 (holding
that the Government breached the plea agreement because in part,
the prosecutor knew at the time she entered into the plea agreement
of the defendant’s potential for prosecution in another
jurisdiction, and testimony that she “was hoping that [the
defendant] wouldn’t ask her specifically about the coverage of the
agreement.”).
15
Similarly, in the present case, the Government entered into a
stipulation in a plea agreement and changed its position at
sentencing. In this instance, the Government stipulated that at
the time of the plea agreement, it had no information that Embree
possessed a dangerous weapon in connection with the offense. Like
the prosecutors in Badaracco, the Government did in fact possess
information which contradicted the stipulation they later entered
into under the agreement. The record in this case reveals that in
fact, the Government had knowledge that Embree possessed multiple
firearms in connection with the offense as a result of Agent
Snedeker’s interviews with the confidential informant leading up to
Embree’s arrest and because of the gun holsters recovered from his
residence at the time of his arrest. Further, the Government knew
of Embree’s possession of a knife in connection with the offense
before it entered into the stipulation in the plea agreement
because of the informant’s conversations with Agent Snedeker, to
which he testified, and because the knife was recovered from
Embree’s vehicle at the time of his arrest.
The Government freely entered into the plea agreement with
Embree and expressly agreed to the stipulation that it possessed no
information which would prevent application of the safety valve
provision. In so doing, the Government was agreeing that it
possessed no information that Embree possessed a dangerous weapon
in connection with the offense. Embree relied on the Government’s
16
promise to adhere to this stipulation in deciding to enter a plea
of guilty and thus to forego his constitutional right to a jury
trial. The Government then changed its position at sentencing by
arguing that Embree possessed a weapon in connection with the
offense to which he pled guilty. The Government’s argument for a
2-level enhancement for possession of a dangerous weapon in
connection with the offense “violated the spirit, if not the
letter” of the plea agreement. Badaracco, 954 F.2d 928, 940 (3d
Cir. 1992). The Government’s argument provided the district court
with a basis for not only denying Embree the benefit of application
of the safety valve provision, but also for the application of the
2-level sentencing enhancement. Therefore, we conclude that by
arguing for the 2-level enhancement under U.S.S.G. § 2D1.1(b)(1),
the Government indeed breached its obligations under the Plea
Agreement.
iii.
Notwithstanding the Court’s holding that the Government
breached the plea agreement in the manner previously described, we
now address the Government’s argument that Embree breached the
agreement, thereby excusing any breach on behalf of the Government.
The party asserting the breach must prove by a preponderance of the
evidence that he fulfilled all of his obligations under the
agreement. United States v. Snow, 234 F.3d 187, 189 (4th Cir.
17
2000). Thus, Embree as the party asserting the breach, must also
establish that he has satisfied his own obligations under the plea
agreement in order to prevail. Id. The Government in this regard
contends that Embree breached the plea agreement by: (1) making a
false statement under oath; (2) failing to accept responsibility;
and (3) providing false information at the debriefing.
Although the facts of this case are not in dispute, the
question of whether Embree breached the plea agreement by making a
false statement during his testimony at his plea hearing is an
issue of fact, and therefore, we review the district court’s
findings on this issue for clear error. Snow, 234 F.3d at 189. The
district court acknowledged and freely relied upon the Government’s
argument at sentencing that Embree had testified inconsistently.
The district court, however, did not find that Embree had committed
perjury at his plea hearing because Embree did in fact testify at
sentencing that he sold methamphetamine on occasion. The district
court therefore interpreted Embree’s statement at his plea hearing
as a denial that he was engaged in the widespread or commercial
sale of methamphetamine. As such, the district court further found
that Embree’s statements were not necessarily inconsistent. The
Government has not appealed the district court’s findings in this
regard, and we hold that the district court did not clearly err in
finding that Embree did not make a false statement under oath in
breach of the plea agreement.
18
Second, with regard to the Government’s contention that Embree
committed a breach of the plea agreement by failing to accept
responsibility for the offense to which he pled guilty in violation
of paragraph H of the plea agreement, this is also a question of
fact which we review for clear error. Snow, 234 F.3d at 189. In
overruling the Government’s objection to Embree’s receipt of an
adjustment for acceptance of responsibility, the district court
found that Embree had admitted his involvement within the meaning
of the acceptance of responsibility provision. Specifically, the
district court found that Embree admitted to financing Richardson’s
trips to California to purchase methamphetamine, and that that was
sufficient to allow him to obtain the deduction for acceptance of
responsibility. Again, the Government does not dispute the
district court’s factual findings, and we conclude that the
district court did not clearly err in finding that Embree did not
fail to accept responsibility for conspiracy to distribute
methamphetamine in breach of the plea agreement.
Finally, however, the Government’s contention that Embree
provided false information to officers in his debriefing has merit
and it is consistent with the district court’s findings of fact.
Whether Embree’s false statements constitute a material breach of
the plea agreement is a question of law, which we review de novo.
United States v. Martin, 25 F.3d 211, 217 (4th Cir. 1994)
(“principles of contract interpretation applied to the facts are
19
reviewed de novo.”). One of the requirements of the safety valve
provision is that the defendant “truthfully provide[ ] to the
Government all information and evidence the defendant has
concerning the offense or offenses that were part of the same
course of conduct or of a common scheme or plan. . .” U.S.S.G. §
5C1.1(a)(5). Further, Paragraph L of the plea agreement obligated
Embree to provide complete and truthful information to attorneys
and law enforcement and not to give any false information. In
denying Embree the benefit of the safety valve provision, the
district court found that he did not truthfully set forth his
involvement in the same course of conduct as involved with the
offense. Specifically, the district court found that while Embree
agreed that he financed Richardson’s trips to California, the
evidence sufficiently established that he not only was involved in
the later manufacture of methamphetamine to an extent “much greater
than he’s admitted,” but that he also personally sold
methamphetamine “to a much greater extent than he’s admitted.”
Embree argues, however, that in the plea agreement, he
reserved the right to provide evidence about conduct relevant to
the same course of conduct in support of his request for
application of the safety valve provision. In raising this
argument, Embree contends that any breach on his behalf regarding
the information he provided to law enforcement and at sentencing is
analogous to the defendant’s arguments in United States v. Peglera,
20
33 F.3d 412 (4th Cir. 1994). In Peglera, the defendant appealed
the imposition of his sentence arguing that the Government had
breached a plea agreement in which it agreed to recommend the
lowest end of the sentencing guidelines and a 3-level reduction for
acceptance of responsibility. Id. at 413. At sentencing the
Government argued that it was no longer bound by the terms of the
plea agreement because Peglera testified that he personally
distributed only powder cocaine, and not the cocaine base for which
he pled guilty. Id. at 412-13. In Peglera, we held that while the
Government’s argument had considerable force under some
circumstances, it failed in this instance because the agreement
expressly reserved Peglera’s right to argue that the “Schedule II
narcotic controlled substance for which he should be held
accountable is cocaine hydrochloride [powder cocaine].” Id. at 414.
Further, the Government had acknowledged Peglera’s right to dispute
his responsibility for distributing cocaine base at sentencing.
Id. Therefore, we concluded that Peglera had not breached the plea
agreement so as to excuse the Government’s own breach.
The present case, however, can be distinguished from Peglera
because there was no similar provision in Embree’s plea agreement
which entitled him to give false information regarding the extent
of his involvement in the conspiracy to which he pled guilty. In
fact, this plea agreement required Embree to fully and truthfully
disclose his involvement in the offense. The district court found
21
that Embree failed to provide truthful information regarding the
conspiracy to distribute methamphetamine. By failing to provide
complete and truthful information relating to the offense, Embree
breached his agreement with the Government. See also, United
States v. Lyons, No. 05-4735, 2006 WL 3253195 (4th Cir. Nov. 8,
2006)(holding that where defendant was not initially truthful with
law enforcement concerning information on drug deals and failed to
“cooperate” with the government in accordance with the terms of the
plea agreement, the government did not breach the agreement by
failing to move for the normal 50% 5K1.1 departure and instead
moving for a 25% reduction). Unlike Peglera, Embree can point to
no provision in this agreement that excuses his breach. According
to paragraph D of the plea agreement, upon Embree’s breach of the
agreement, the Government was entitled to refuse to abide by the
stipulations contained in the agreement, including the stipulation
that it had no information that Embree possessed a dangerous weapon
in connection with the offense. Therefore, we hold that Embree’s
breach of the plea agreement based upon his failure to fully and
truthfully disclose his involvement in the conspiracy precludes him
from the relief he has requested in his appeal. Accordingly, we
conclude that the district court did not err in imposing a 2-level
enhancement for possession of a dangerous weapon in connection with
the offense.
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III.
For all the reasons stated above, the district court’s
application of a 2-level enhancement against Embree under U.S.S.G.
§ 2D1.1(b)(1) is affirmed.
AFFIRMED
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