United States v. Ezequiel Garza , 699 F. App'x 271 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4842
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
EZEQUIEL GONZALEZ GARZA,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Greenville. James C. Fox, Senior District Judge. (4:16-cr-00011-F-1)
Submitted: October 25, 2017 Decided: October 31, 2017
Before WILKINSON, DUNCAN, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Matthew N. Leerberg, SMITH MOORE LEATHERWOOD LLP, Raleigh, North
Carolina; Kip D. Nelson, SMITH MOORE LEATHERWOOD LLP, Greensboro, North
Carolina, for Appellant. John Stuart Bruce, United States Attorney, Jennifer P.
May-Parker, First Assistant United States Attorney, Kristine L. Fritz, Assistant United
States Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ezequiel Gonzalez Garza pled guilty, pursuant to a written plea agreement, to
conspiracy to distribute and possess with intent to distribute 500 grams or more of
methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846 (2012). The
district court sentenced Garza to 135 months’ imprisonment. On appeal, Garza
challenges this sentence, arguing that it resulted from the government’s breach of the
parties’ plea agreement and the ineffective assistance of defense counsel. We affirm.
Garza first contends that his sentence should be vacated because the government
breached the parties’ plea agreement. The government breaches a plea agreement when
an express or implied promise it made to induce the plea remains unfulfilled. United
States v. Tate, 845 F.3d 571, 575 (4th Cir. 2017); see Santobello v. New York, 404 U.S.
257, 262 (1971). However, “the government is held only to those promises that it
actually made to the defendant.” Id. (internal quotation marks omitted).
“[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). Because Garza did not claim in the district
court that the government had breached the plea agreement, we review for plain error.
United States v. Obey, 790 F.3d 545, 547 (4th Cir. 2015). “To prevail, [defendant] must
show that an error occurred, that it was plain, and that it affected his substantial rights,”
and even with such a showing, we correct only those errors that affect “the fairness,
integrity, or public reputation of judicial proceedings.” Id. With these strict standards in
mind, and after a review of the record, we conclude that there was no plain error. We
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perceive no breach of the plea agreement, and even if the government’s conduct were
considered to constitute such a breach, the sentencing court was aware of the mitigating
information at issue before imposing sentence.
Garza next claims that he received ineffective assistance of counsel. We do not
consider ineffective assistance claims on direct appeal “[u]nless an attorney’s
ineffectiveness conclusively appears on the face of the record.” United States v. Faulls,
821 F.3d 502, 507 (4th Cir. 2016). Indeed, a defense attorney should be given an
opportunity to address the reasons for his or her action or inaction, and the record should
be more fully developed, before addressing this issue. See United States v. DeFusco, 949
F.2d 114, 120-21 (4th Cir. 1991). We have reviewed the record and conclude that there
is no conclusive evidence of ineffective assistance. Garza’s claim “should be raised, if at
all, in a 28 U.S.C. § 2255 motion.” Faulls, 821 F.3d at 508.
We therefore affirm the criminal 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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