United States v. Tann , 220 F. App'x 204 ( 2007 )


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  •                             UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 06-4649
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    versus
    TEMEKA LASHELLE TANN,
    Defendant - Appellant.
    Appeal from the United States District Court for the Eastern
    District of North Carolina, at Raleigh. Malcolm J. Howard, Senior
    District Judge. (5:06-cr-00005-H)
    Submitted:   January 31, 2007              Decided:   March 1, 2007
    Before MOTZ, TRAXLER, and DUNCAN, Circuit Judges.
    Affirmed by unpublished per curiam opinion.
    Mitchell G. Styers, BANZET, THOMPSON & STYERS, P.L.L.C., Warrenton,
    North Carolina, for Appellant. George E. B. Holding, United States
    Attorney, Anne M. Hayes, Christine Witcover Dean, Assistant United
    States Attorneys, Raleigh, North Carolina, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Temeka Lashelle Tann appeals her eighty-month sentence
    after pleading guilty to one count of conspiracy to distribute and
    possess with intent to distribute more than five grams of cocaine
    base, in violation of 
    21 U.S.C. §§ 841
    (a)(1), 846 (2000).        Tann
    asserts the Government breached the plea agreement and committed
    prosecutorial misconduct.     We affirm.
    Tann asserts the Government breached the plea agreement
    by arguing at sentencing that Tann was not entitled to receive the
    stipulated reductions it contained.      The Government counters that
    Tann’s continued criminal conduct breached the plea agreement and,
    pursuant to the terms of the agreement, released the Government
    from its stipulations.   Tann did not object to the Government’s
    actions at sentencing, and she must therefore demonstrate plain
    error before she can obtain any relief.    See United States v. Fant,
    
    974 F.2d 559
    , 562 (4th Cir. 1992) (applying plain error analysis in
    context of breach of plea agreement).
    We find the Government did not breach the plea agreement.
    The plea agreement clearly stated, “if [Tann’s] conduct prior to
    sentencing changes the circumstances with respect to any such
    factors, the Government is no longer bound to its position as to
    those factors.”   Tann does not deny that she sold drugs after
    signing the plea agreement.    Thus the Government was released from
    any further obligations in the plea agreement.
    - 2 -
    Tann   also   contends    that    the    Government    committed
    prosecutorial misconduct by knowingly allowing her to enter into a
    plea agreement while it withheld information that it used to
    justify its subsequent refusal to file a substantial assistance
    motion pursuant to U.S. Sentencing Guidelines Manual § 5K1.1.               A
    claim of prosecutorial misconduct is reviewed “to determine whether
    the conduct so infected the trial with unfairness as to make the
    resulting conviction a denial of due process.”              United States v.
    Scheetz, 
    293 F.3d 175
    , 185 (4th Cir. 2002) (internal quotation
    marks and citation omitted).       To prevail under this standard, Tann
    must show that “the prosecutor’s remarks or conduct were improper
    and, second . . . that such remarks or conduct prejudicially
    affected [her] substantial rights” so as to deprive her of a fair
    trial.    
    Id.
    We find that Tann cannot meet this standard.           The plea
    agreement clearly stated that the Government did not promise to
    file a § 5K1.1 motion.       Moreover, at the Rule 11 hearing, Tann
    stated no one made undisclosed promises to induce her to plead
    guilty.   She also confirmed that the plea agreement was the entire
    agreement between herself and the Government.
    Accordingly, we affirm Tann’s 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.
    - 3 -
    AFFIRMED
    - 4 -
    

Document Info

Docket Number: 06-4649

Citation Numbers: 220 F. App'x 204

Judges: Duncan, Motz, Per Curiam, Traxler

Filed Date: 3/1/2007

Precedential Status: Non-Precedential

Modified Date: 8/7/2023