United States v. Cameron

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4637
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
THOMAS ERECO CAMERON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:07-cr-00252-BO-1)
Submitted: February 25, 2009 Decided: March 17, 2009
Before WILKINSON, MOTZ, and AGEE, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
C. Scott Holmes, BROCK, PAYNE & MEECE, PA, Durham, North
Carolina, for Appellant. George E. B. Holding, United States
Attorney, Anne M. Hayes, Denise Walker, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Thomas Ereco Cameron pleaded guilty, pursuant to a
plea agreement, to possession with intent to distribute more
than 500 grams of cocaine, in violation of 21 U.S.C. § 841(a)(1)
(2006), and was sentenced to 210 months of imprisonment.
Cameron appeals, arguing that the court committed error in
imposing his sentence and the Government breached the plea
agreement. We dismiss Cameron’s appeal in part and affirm in
part.
Cameron claims that the district court committed
procedural error in imposing his sentence by failing to consider
the factors under 18 U.S.C. § 3553(a) (2006). However, as the
Government contends, Cameron’s challenge to his sentence is
barred by the appeal waiver in his plea agreement.
A defendant may, in a valid plea agreement, waive the
right to appeal under 18 U.S.C. § 3742 (2006). United States v.
Wiggins, 905 F.2d 51, 53 (4th Cir. 1990). This court reviews de
novo the validity of a waiver, United States v. Brown, 232 F.3d
399, 403 (4th Cir. 2000), and will uphold a waiver of appellate
rights if the waiver is valid and the issues raised are within
the scope of the waiver. United States v. Blick, 408 F.3d 162,
168 (4th Cir. 2005).
In this case, the language in the plea agreement is
clear and unambiguous. Under its terms, Cameron agreed to waive
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his right to appeal the sentence imposed so long as it was not
in excess of the advisory guideline range. 1 In addition, the
district court conducted a thorough inquiry pursuant to Fed. R.
Crim. P. 11 establishing that Cameron understood the proceedings
and the provisions of the plea agreement. Thus, the appeal
waiver is both valid and enforceable, and Cameron’s challenge to
his below-guidelines sentence clearly falls within the broad
scope of the waiver. We therefore dismiss Cameron’s appeal with
respect to this claim.
Cameron also contends that the Government violated the
terms of his plea agreement by referring to a protected
statement during the sentencing hearing. 2 Because Cameron did
not raise this claim before the district court, we review the
issue for plain error. See United States v. McQueen, 108 F.3d
64, 65-66 (4th Cir. 1997).
Cameron’s plea agreement provided that, in accord with
U.S. Sentencing Guidelines Manual (“USSG”) § 1B1.8 (2007),
information he provided pursuant to the cooperation provisions
1
Cameron’s guideline range was between 235 and 293 months
of imprisonment.
2
A defendant’s waiver of appellate rights cannot foreclose
an argument that the government breached its obligations under
the plea agreement. See United States v. Cohen, 459 F.3d 490,
495 (4th Cir. 2006); United States v. Bowe, 257 F.3d 336, 342
(4th Cir. 2001). Accordingly, the Government properly does not
seek to enforce Cameron’s appeal waiver as to this claim.
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of his plea agreement would not be used in determining the
applicable guideline range. This provision was not violated.
Cameron’s offense level of thirty-two was based on a drug
quantity of 5.5 kilograms, consistent with Cameron’s stipulation
in the plea agreement that the relevant quantity of cocaine was
between five and fifteen kilograms.
While USSG § 1B1.8 does not permit the use of self-
incriminating information provided pursuant to a cooperation
agreement to be used in the calculation of the guideline range,
the provision “shall not be applied to restrict the use of the
information . . . in determining whether, or to what extent, a
downward departure from the guidelines is warranted pursuant to
a government motion under § 5K1.1.” USSG § 1B1.8(b)(5). In
this case, the court considered Cameron’s protected statement
only in addressing the Government’s substantial assistance
motion, a permissible use under the guideline. Therefore,
Cameron cannot establish error, plain or otherwise.
Accordingly, we dismiss Cameron’s appeal in part and
affirm in part. In addition, because Cameron is represented by
counsel, we deny his motion to file a pro se supplemental brief.
See Fed. R. App. P. 28(a), (c). We dispense with oral argument
because the facts and legal contentions are adequately presented
4
in the written materials before the court and argument would not
aid the decisional process.
DISMISSED IN PART;
AFFIRMED IN PART
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