United States v. Aylor , 374 F. App'x 414 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4569
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DERRICK SCOTT AYLOR,
Defendant – Appellant.
No. 09-4577
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DERRICK SCOTT AYLOR,
Defendant – Appellant.
Appeals from the United States District Court for the District
of Maryland, at Greenbelt. Peter J. Messitte, Senior District
Judge. (8:09-cr-00021-PJM-1; 8:08-cr-00489-PJM-1)
Submitted: April 1, 2010 Decided: April 16, 2010
Before WILKINSON, MOTZ, and AGEE, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
A.D. Martin, LAW OFFICE OF ANTHONY D. MARTIN, Greenbelt,
Maryland, for Appellant. Jonathan C. Su, Assistant United
States Attorney, Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Derrick Scott Aylor pled guilty, pursuant to a written
plea agreement, to two counts of bank robbery, in violation of
18 U.S.C. § 2113(a), (f) (2006). The district court calculated
Aylor’s total offense level under the U.S. Sentencing Guidelines
Manual (2008) at 21 and his criminal history in Category IV,
resulting in a Guidelines imprisonment range of 57 to 71 months
on each count. The district court sentenced Aylor to 71 months’
imprisonment. Aylor appeals and asserts on appeal that his
guilty plea and sentence are void because the Government
breached the plea agreement by failing to afford him an
opportunity to participate in a presentence debriefing
interview. The Government moves to dismiss the appeal, arguing
that Aylor’s knowing and voluntary waiver of his right to appeal
his sentence bars this appeal. We dismiss in part and affirm in
part.
A defendant may waive the right to appeal if that
waiver is knowing and intelligent. United States v. Amaya-
Portillo, 423 F.3d 427, 430 (4th Cir. 2005). To determine
whether a waiver is knowing and intelligent, this court examines
“the totality of the circumstances, including the experience and
conduct of the accused, as well as the accused’s educational
background and familiarity with the terms of the plea
agreement.” United States v. General, 278 F.3d 389, 400
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(4th Cir. 2002) (internal quotation marks omitted). Generally,
if the district court fully questions a defendant at the Fed. R.
Crim. P. 11 proceeding regarding the waiver of his right to
appeal, the waiver is both valid and enforceable. See United
States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005). However,
an appeal waiver does not bar the appeal of a sentence imposed
in excess of the statutory maximum or a challenge to the
validity of a guilty plea. See General, 278 F.3d at 399 n.4.
Nor does it bar an appeal raising issues not within the scope of
the waiver. See United States v. Blick, 408 F.3d 162, 168
(4th Cir. 2005).
Our review of the record leads us to conclude that
Aylor knowingly and voluntarily waived the right to appeal his
sentence * and that the district court fully questioned Aylor
regarding that waiver. Accordingly, the waiver is valid.
Aylor claims that the appeal waiver is not enforceable
because the Government breached the plea agreement. This court
“will not enforce an otherwise valid appeal waiver against a
defendant if the [G]overnment breached the plea agreement
containing that waiver.” United States v. Cohen, 459 F.3d 490,
*
Pursuant to the plea agreement’s appeal waiver, Aylor
agreed to waive his right to appeal from any sentence within or
below the advisory Guidelines range resulting from an adjusted
offense level of 21.
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495 (4th Cir. 2006). The Government breaches the plea agreement
when a promise it made to induce the plea goes unfulfilled. See
Santobello v. New York, 404 U.S. 257, 262 (1971). Because Aylor
did not raise this issue in the district court, we review it for
plain error. See Puckett v. United States, 129 S. Ct. 1423,
1428 (2009).
Although acknowledging that the written plea agreement
contains no provision obligating the Government to afford him
the opportunity to participate in a presentence debriefing
interview, Aylor claims that the agreement was modified by
statements made during the guilty plea and sentencing hearings.
As a general rule, “integrated written plea agreements are not
open to oral supplementation.” United States v. Martin, 25 F.3d
211, 217 n.4 (4th Cir. 1994). However, this court has
recognized exceptions to this rule in particular circumstances
where the Government has made affirmative representations in
open court. See United States v. Wood, 378 F.3d 342, 349-50
(4th Cir. 2004); Martin, 25 F.3d at 214-17.
After review of the record, we conclude that the plea
agreement was not orally supplemented to include a provision
requiring the Government to afford Aylor the opportunity to
participate in a presentence debriefing interview. Accordingly,
the Government did not breach the plea agreement by failing to
afford Aylor such an interview. Aylor’s claim of breach
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therefore fails, and the plea agreement and its appeal waiver
are enforceable against Aylor. Because Aylor’s challenge to his
sentence falls within the waiver’s scope, we grant the
Government’s motion to dismiss in part. Although Aylor’s appeal
waiver insulates his sentence from appellate review, the waiver
does not preclude our consideration of any challenges to the
validity of Aylor’s conviction. Consequently, we deny the
motion to dismiss in part.
Turning, then, to Aylor’s conviction, Aylor claims on
appeal that his guilty plea is void as a result of the
Government’s breach of the plea agreement. While this claim is
not barred by the appeal waiver, we conclude it is without
merit. Accordingly, we affirm Aylor’s conviction and dismiss
the appeal of his sentence. We dispense with oral argument
because the facts and legal contentions are adequately expressed
in the materials before the court and argument would not aid the
decisional process.
DISMISSED IN PART;
AFFIRMED IN PART
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