United States v. Robert Peterson , 546 F. App'x 124 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4295
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROBERT PAIGE PETERSON, a/k/a Robbie,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling. John Preston Bailey,
Chief District Judge. (5:12-cr-00020-JPB-JES-3)
Submitted: October 24, 2013 Decided: November 7, 2013
Before WILKINSON, GREGORY, and SHEDD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Charles T. Berry, Fairmont, West Virginia, for Appellant.
William J. Ihlenfeld, II, United States Attorney, Randolph J.
Bernard, Robert H. McWilliams, Jr., Assistant United States
Attorneys, Wheeling, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Robert Peterson pled guilty, pursuant to a written
plea agreement, to one count of conspiracy to possess with
intent to distribute and to distribute Schedule I and II
Controlled Substances, in violation of 21 U.S.C.
§§ 841(b)(1)(c), 846 (2006). He appeals, claiming that the
government breached the plea agreement by failing to move for a
downward departure pursuant to U.S. Sentencing Guidelines Manual
(USSG) § 5K1.1 (2012). The Government has moved to dismiss the
appeal based on the waiver in the plea agreement. For the
reasons that follow, we dismiss the appeal.
Where the government seeks to enforce an appeal waiver
and did not breach its obligations under the plea agreement, the
court will enforce the waiver if the defendant’s waiver was
knowing and intelligent and the issues raised on appeal fall
within the scope of the agreement. United States v. Blick, 408
F.3d 162, 168-69 (4th Cir. 2005). To determine whether an
appeal waiver is knowingly and intelligently entered, the court
examines the totality of the circumstances, including the
defendant’s experience, conduct, educational background, and
familiarity with the agreement’s terms. United States v.
General, 278 F.3d 389, 400 (4th Cir. 2002). “An appeal waiver
‘is not knowingly or voluntarily made if the district court
fails to specifically question the defendant concerning the
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waiver provision of the plea agreement during the Rule 11
colloquy and the record indicates that the defendant did not
otherwise understand the full significance of the waiver.’”
United States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005)
(quoting United States v. Marin, 961 F.2d 493, 496 (4th Cir.
1992)).
However, this court “will not enforce an otherwise
valid appeal waiver against a defendant if the government
breached the plea agreement containing that waiver.” United
States v. Cohen, 459 F.3d 490, 495 (4th Cir. 2006). The 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 Peterson did not raise a claim that the
Government breached the plea agreement in the district court,
this court’s review is for plain error. Puckett v. United
States, 556 U.S. 129, 134-36 (2009). To prevail under this
standard, Peterson must show not only that the Government
plainly breached the plea agreement, but also that he was
prejudiced by the error and that “the breach was so obvious and
substantial that failure to notice and correct it affected the
fairness, integrity or public reputation of the judicial
proceedings.” United States v. McQueen, 108 F.3d 64, 66 (4th
Cir. 1997) (internal quotation marks and alteration omitted).
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We have reviewed the record and conclude that there
was no breach, plain or otherwise. The plea agreement contained
no promise by the Government to move for a § 5K1.1 reduction
and, at his plea hearing, Peterson acknowledged that there was
no such stipulation or agreement.
Given that there was no breach of the plea agreement,
the question is whether Peterson’s appeal is barred by the
appellate waiver contained in his plea agreement. We find that
it is. The district court specifically questioned Peterson
about the written appellate waiver and confirmed that Peterson
understood he was waiving his right to appeal by entering the
agreement. The terms of the waiver were “clear and
unmistakable.” See Blick, 408 F.3d at 169. Because Peterson
raises no claim outside the scope of the waiver, we find that
the waiver is valid and enforceable. Therefore, we dismiss the
appeal. 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.
DISMISSED
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