United States v. Jerry Guess , 565 F. App'x 271 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4109
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JERRY DEMARIO GUESS,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Max O. Cogburn, Jr.,
District Judge. (3:10-cr-00145-MOC-DCK-1)
Submitted: March 31, 2014 Decided: April 10, 2014
Before WILKINSON, NIEMEYER, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Robert C. Carpenter, ADAMS, HENDON, CARSON, CROW & SAENGER,
P.A., Asheville, North Carolina, for Appellant. Anne M.
Tompkins, United States Attorney, William M. Miller, Assistant
United States Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jerry Demario Guess pleaded guilty pursuant to a
written plea agreement to wire fraud, 18 U.S.C. § 1343 (2012),
and two counts of filing false tax returns, 26 U.S.C. § 7206(a)
(2012). The district court sentenced Guess to fifty-one months’
imprisonment for the wire fraud conviction and a concurrent
thirty-six months for the false tax return convictions. Prior
to sentencing, the Government objected to Guess’ presentence
investigation report, asserting that the report incorrectly
grouped the wire fraud conviction with the false tax return
convictions and that the multiple count adjustment pursuant to
U.S. Sentencing Guidelines Manual (USSG) § 3D1.4 therefore
applied. On appeal, Guess argues that the Government’s non-
grouping objection constituted a breach of the plea agreement.
The Government responds that no such breach occurred and that
Guess’ appeal should be dismissed based on the waiver of
appellate rights included in the plea agreement.
“[A] party’s waiver of the right to seek appellate
review is not enforceable where the opposing party breaches a
plea agreement.” United States v. Bowe, 257 F.3d 336 (4th Cir.
2001). Therefore, we must address Guess’ allegation of breach,
the sole issue he raises on appeal, and decline the Government’s
invitation to enforce the appeal waiver.
2
A party alleging that the Government breached the plea
agreement bears the burden of showing by a preponderance of the
evidence that a breach occurred. United States v. Snow, 234
F.3d 187, 189 (4th Cir. 2000). Because Guess did not properly
preserve this claim in the district court, our review is for
plain error. ∗ Puckett v. United States, 556 U.S. 129, 134-36
(2009) (holding plain error rule applies to claim of breach of
plea agreement).
To establish plain error on appeal Guess must
establish that: (1) there was error; (2) the error was plain;
and (3) the error affected his substantial rights. Fed. R.
Crim. P. 52(b); United States v. Henderson, 133 S. Ct. 1121,
1126 (2013). Even if Guess establishes each of these
prerequisites, we exercise our discretion to correct the error
only if we are convinced that the error “seriously affects the
fairness, integrity or public reputation of judicial
proceedings.” Henderson, 133 S. Ct. at 1126-27 (internal
quotation marks and alteration omitted).
∗
We reject Guess’ contention that he properly preserved
this issue for appeal in light of counsel’s failure to raise a
claim of breach in the district court, United States v. Taylor,
659 F.3d 339, 348 (4th Cir. 2011) (“[T]he defendant is deemed
bound by the acts of his lawyer-agent.”), and because Guess’ own
assertions of a breach were made only in the context of his
request for a continuance of the sentencing hearing to retain
substitute counsel.
3
We have reviewed the record and conclude that the
Government did not plainly breach the plea agreement. The
language Guess relies on in his claim of breach does not clearly
support his interpretation. In any case, the district court, in
imposing sentence, suggested that it would have reached the same
result regardless of the applicable Guidelines range; therefore,
Guess is unable to establish an adverse impact on his
substantial rights. Accordingly, we affirm the judgment below.
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
4