United States v. Thrash , 414 F. App'x 582 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-5079
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL EUGENE THRASH, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Elizabeth City. Malcolm J.
Howard, Senior District Judge. (2:09-cr-00003-H-1)
Submitted: January 20, 2011 Decided: February 16, 2011
Before NIEMEYER and GREGORY, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Diana Stavroulakis, Pittsburgh, Pennsylvania, for Appellant.
George E. B. Holding, United States Attorney, Jennifer P.
May-Parker, Joshua B. Royster, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Eugene Thrash, Jr., appeals his conviction and
210-month sentence imposed following his guilty plea to one
count of conspiracy to distribute and possess with intent to
distribute fifty grams or more of cocaine base and more than 500
grams of cocaine powder, in violation of 21 U.S.C. § 846 (2006).
On appeal, Thrash contends the Government breached the plea
agreement by withdrawing its motion for a reduction of sentence,
pursuant to U.S. Sentencing Guidelines Manual (“USSG”) § 5K1.1,
p.s. (2008). Thrash also contends that the terms of his plea
agreement were breached when the district court declined to
apply a reduction for acceptance of responsibility, pursuant to
USSG § 3E1.1. The Government denies that it has breached the
plea agreement and contends that the acceptance of
responsibility claim is barred by Thrash’s waiver of his right
to appeal. We affirm.
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, 495 (4th Cir. 2006). “It is settled that a defendant
alleging the Government’s breach of a plea agreement bears the
burden of establishing that breach by a preponderance of the
evidence.” United States v. Snow, 234 F.3d 187, 189 (4th Cir.
2000). Because Thrash did not raise this issue in the district
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court, it is reviewed for plain error. See Puckett v. United
States, 129 S. Ct. 1423, 1428 (2009). To prevail under this
standard, Thrash 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, 65-66 (4th Cir. 1997)
(internal quotation marks and alteration omitted); see United
States v. Dawson, 587 F.3d 640, 645 (4th Cir. 2009).
Plea agreements are grounded in contract law, and both
parties should receive the benefit of their bargain. United
States v. Chase, 466 F.3d 310, 314 (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 of “constitutional and
supervisory concerns,” the Government is held to a “greater
degree of responsibility than the defendant . . . for
imprecisions or ambiguities in plea agreements.” United
States v. Harvey, 791 F.2d 294, 300 (4th Cir. 1986). Where an
agreement is ambiguous in its terms, the terms must be construed
against the Government. Id. at 303. However, “[w]hile the
[G]overnment must be held to the promises it made, it will not
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be bound to those it did not make.” United States v. Fentress,
792 F.2d 461, 464 (4th Cir. 1986).
After reviewing the record, we find that the
Government’s declination to move for a reduction in sentence was
not in breach of the plea agreement. Moreover, the plea
agreement merely recommended that the district court apply a
reduction for acceptance of responsibility, pursuant to USSG
§ 3E1.1, and this recommendation was not binding on the court.
To the extent that Thrash seeks to argue that the district court
erred in refusing a sentence reduction for acceptance of
responsibility, USSG § 3E1.1, this claim is barred by Thrash’s
unchallenged appellate waiver.
Accordingly, we affirm Thrash’s convictions and
sentence. 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
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