United States v. Person ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4944
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DOUGLAS THOMAS PERSON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Terrence W. Boyle,
District Judge. (5:03-cr-00170-BO)
Submitted: October 20, 2008 Decided: November 6, 2008
Before WILKINSON, KING, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Lewis A. Thompson, III, BANZET, THOMPSON & STYERS, PLLC,
Warrenton, North Carolina, for Appellant. George E. B. Holding,
United States Attorney, Anne M. Hayes, Banumathi Rangarajan,
Assistant United States Attorneys, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Douglas Thomas Person pled guilty to possession with
intent to distribute five grams or more cocaine base, 21 U.S.C.
§ 841(a)(1) (2000), and possession of a firearm during and in
relation to a drug trafficking crime, 18 U.S.C. § 924(c)(1)(A)
(2006). He was sentenced to 262 months’ imprisonment. On
appeal, Person challenges his sentence, alleging the Government
breached the plea agreement in failing to inform the district
court at sentencing of the full extent of his cooperation.
Finding no plain error, we affirm.
A defendant alleging the 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, Person 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
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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, in enforcing plea agreements, the government is
held only to those promises that it actually made,” and “the
government’s duty in carrying out its obligations under a plea
agreement is no greater than that of ‘fidelity to the
agreement.’” Id. (quoting United States v. Fentress, 792 F.2d
461, 464 (4th Cir. 1986)); see also United States v. Benchimol,
471 U.S. 453, 456 (1985) (holding “it was error for the Court of
Appeals to imply as a matter of law a term which the parties
themselves did not agree upon” by requiring recommendation to be
made “enthusiastically”); but see United States v. Brown, 500
F.2d 375 (4th Cir. 1974) (concluding “government failed to keep
its bargain” by expressing doubts about its agreed-upon
recommendation which “could reasonably be expected to be . . .
expressed with some degree of advocacy”).
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We have reviewed the record and conclude the
Government did not breach the plea agreement. Under the plea
agreement, the Government was obligated to make known to the
district court at sentencing the full extent of Person’s
cooperation. At sentencing, the Government informed the
district court that Person had signed a plea agreement, that he
had been debriefed, and that he provided complete and truthful
information. The Government added that it believed the
information Person provided would be used at a later time to
calculate another individual’s guideline range and that Person
would hopefully be eligible for a sentence reduction under Fed.
R. Crim. P. 35. We find that the Government satisfied its
obligation to apprise the court of the extent of Person’s
cooperation.
Accordingly, we affirm Person’s sentence. 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.
AFFIRMED
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