United States v. Hurst

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4853
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
WANDA KNIGHT HURST,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Spartanburg. G. Ross Anderson, Jr., District
Judge. (CR-03-312)
Submitted: August 13, 2004 Decided: September 14, 2004
Before LUTTIG, SHEDD, and DUNCAN, Circuit Judges.
Affirmed in part; vacated and remanded in part by unpublished per
curiam opinion.
James Barlow Loggins, Assistant Federal Public Defender,
Greenville, South Carolina, for Appellant. William Corley Lucius,
Assistant United States Attorney, Greenville, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Wanda Knight Hurst appeals her conviction and sentence
entered pursuant to her guilty plea to bank fraud. On appeal, her
attorney filed an Anders* brief, in which he stated that there were
no meritorious issues for appeal but presented one issue for this
court’s review: whether the district court violated Fed. R. Crim.
P. 11. Hurst was informed of her right to file a pro se
supplemental brief, but she has not done so.
After reviewing the entire record pursuant to Anders, we
ordered additional briefing on the following issues: “(1) whether
the Government breached the plea agreement and (2) if so, whether
the breach was plain error.” After Hurst submitted a supplemental
brief arguing that the failure to move for a two-level role
adjustment was a breach of the plea agreement and plain error, the
parties filed a joint motion to remand for a new sentencing
hearing. The Government states that the obligation in the plea
agreement to move for a role reduction was overlooked at
sentencing. Thus, the Government agrees that the case should be
remanded for a new sentencing hearing, at which time the
Government’s recommendation can be considered. While we affirm
Hurst’s conviction, we vacate her sentence and grant the motion to
remand for a new sentencing hearing.
*
Anders v. California, 386 U.S. 738 (1967).
- 2 -
This court generally reviews the adequacy of a guilty
plea proceeding de novo. United States v. Damon, 191 F.3d 561, 564
n.2 (4th Cir. 1999). Rule 11 violations, however, are reviewed
under a harmless error standard. Id. Any variance from the Rule
11 requirements that does not affect the substantial rights of the
defendant is disregarded. See Fed. R. Crim. P. 11(h). We find
that the district court’s colloquy was thorough and regular. Thus,
we affirm Hurst’s conviction.
In the plea agreement, the Government agreed to recommend
a two-level reduction of Hurst’s offense level as a minor
participant. At the sentencing hearing, the Government did not so
move, and Hurst was not given a role reduction. The Government has
admitted breaching the plea agreement. The only remedies for
breach of a plea agreement are specific performance or an
opportunity to withdraw the plea. See United States v. Bohn, 959
F.2d 389, 391 (2d Cir. 1992). Here, Hurst does not seek to
withdraw her plea, and both parties request an opportunity for
specific performance of the agreement. Therefore, we grant the
motion to remand, vacate Hurst’s sentence, and remand the case for
a new sentencing hearing where the Government can make the promised
role adjustment recommendation.
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 IN PART;
VACATED AND REMANDED IN PART