                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 14-4678


UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

          v.

ANTONIO VLAIR WHITE,

               Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   James C. Dever III,
Chief District Judge. (5:12-cr-00308-D-1)


Argued:   September 17, 2015             Decided:   October 19, 2015


Before WILKINSON, AGEE, and HARRIS, Circuit Judges.


Vacated and remanded by unpublished opinion. Judge Harris wrote
the opinion, in which Judge Wilkinson and Judge Agee joined.


ARGUED:    Jennifer C. Leisten, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant.      Eric D.
Goulian, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee. ON BRIEF: Thomas P. McNamara, Federal
Public Defender, Stephen C. Gordon, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North
Carolina, for Appellant.     Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.




                                2
PAMELA HARRIS, Circuit Judge:

       After Antonio White (“White”) was indicted for his role in

a string of residential burglaries, he struck a deal with the

Government, pleading guilty to a conspiracy offense in exchange

for the Government’s agreement to drop other charges.                            But as a

result of a complicated statutory scheme and one critical error

in drafting the plea agreement, White and the Government now

disagree about the most fundamental aspect of their bargain:                           To

what conspiracy offense, exactly, did White plead guilty?                               In

the absence of a meeting of the minds over this essential term,

there can be no valid plea agreement.                       Accordingly, we vacate

White’s      judgment       of     conviction         and    remand        for    further

proceedings.



                                            I.

       In December 2008, the Criminal Investigations Division of

the    United      States   Army     began       to   investigate      a     series    of

residential burglaries at the Fort Bragg Military Reservation

(“Fort Bragg”) in North Carolina.                     The investigation revealed

that   White,      along    with    two     other      people,   was       involved    in

stealing     private    and      government      property     from    homes      on   Fort

Bragg.      When interviewed by investigators, White acknowledged a

role   in    the    burglaries.        In       September     2012,    a    grand     jury

returned an indictment against White.

                                            3
       Residential        burglary   generally       is    not     a    federal   crime.

But when it is committed on a federal enclave, like Fort Bragg,

it   may    give   rise    to   federal    charges        under    the    Assimilative

Crimes Act (“ACA”), 18 U.S.C. § 13.                   The ACA enables federal

authorities to prosecute conduct that occurs on federal enclaves

and would be punishable if committed elsewhere within the local

jurisdiction, “assimilating” state law to that end.                          See Lewis

v. United States, 523 U.S. 155, 160 (1998).                       And indeed, one of

the crimes with which White was charged — in the second count of

his indictment — was a violation of 18 U.S.C. § 13, assimilating

North Carolina’s residential breaking and entering statute.                         See

North Carolina General Statute (N.C. Gen. Stat.) § 14-54.

      The    first   count      of   the       indictment    charged       White    with

conspiracy to commit that federal offense.                        And here is where

things begin to get complicated.                 Because a federal conspiracy

offense rests on an underlying criminal objective, Count One

necessarily refers to two separate criminal statutes — or three,

if we include the assimilated state statute.                           Page one of the

indictment, under the heading “Count One,” tracks the elements

of North Carolina law and identifies a conspiracy

      to unlawfully break and enter buildings on various
      occasions, namely dwelling homes, with the intent to
      commit larceny therein, without the consent of the
      owners, in violation of Title 18, United States Code,
      Section   13,  assimilating  North  Carolina  General
      Statute, Section 14-54.


                                           4
J.A. 13 (emphasis added).           On page two, under the heading “Overt

Acts,” the indictment describes the acts undertaken by White in

“furtherance      of    the   conspiracy,”     “[a]ll    in     violation   of   the

provisions of Title 18, United States Code, Section 371,” J.A.

14 (emphasis added), the general federal conspiracy statute. 1

       On January 22, 2013, White signed a plea agreement with the

Government (the “Agreement”).             White agreed to “plead guilty to

Count One” of the indictment, J.A. 35 — the count that ends by

charging White with conspiracy in violation of 18 U.S.C. § 371.

And the Agreement lists the maximum term of imprisonment as five

years, which corresponds to a violation of 18 U.S.C. § 371.                       So

far, so good.          But White also “understands, agrees, and admits”

that “as to Count One of the Indictment to which the Defendant

is pleading guilty,” the “Code section violated” is “18 U.S.C.

§ 13 Assimilating N.C.G.S. § 14-54” — not 18 U.S.C. § 371.                       J.A.

37.        Moreover,    the   listed    “charge”   and   “elements”    track     the

state-law offense of conspiracy to commit breaking and entering,

but omit the element of an overt act (which had been described

on page two of the indictment), as required for a violation of

18    U.S.C.    § 371    (federal      conspiracy).      That    inconsistency     —

       1The third and fourth counts of the indictment, not
directly relevant here, charge White with separate federal
offenses under 18 U.S.C. § 661 and § 662, related to the theft
and   receipt  of  stolen   property  in  federal   territorial
jurisdictions.



                                           5
which the Government concedes arose from a mistake in drafting

the Agreement — is what has generated the confusion around this

plea.

       Unfortunately, that confusion did not manifest itself at

White’s       plea     colloquy,      when     it    might          have     been    addressed

directly.       At the colloquy, the district court confirmed that

White was pleading guilty to Count One.                        It then read the charge

from    the    indictment       and   informed       White      that        Count    One   is   a

felony with a maximum punishment of five years’ imprisonment.

The court also summarized the other counts of the indictment,

starting       with     Count    Two,     which          it    described        as    “another

violation of 18 U.S.C. Section 13, assimilating North Carolina

General Statute 14-54, as to breaking and entering generally.”

J.A. 21.       At the end of the colloquy, the court accepted White’s

guilty plea as voluntarily entered.

       At White’s initial sentencing hearing, however, it became

apparent that there was a dispute as to the precise charge to

which     White       had   pleaded      guilty.              The       Probation     Office’s

Presentence          Investigation      Report       listed         a      maximum    term      of

imprisonment of five years, tracking 18 U.S.C. § 371, and a

Guidelines sentencing range of 37 to 46 months.                              White objected,

arguing       that    his   guilty      plea       was    to    an       assimilated       state

conspiracy charge under 18 U.S.C. § 13 rather than to federal

conspiracy under 18 U.S.C. § 371.                   Because the underlying state-

                                               6
law offense carried a maximum sentence of one year or less,

White     contended,    it    constituted         a    misdemeanor   rather    than    a

felony for federal purposes. 2                  The Government       disagreed with

White as to the terms of the Agreement, maintaining that White

had   pleaded      guilty     to    a   federal       conspiracy   charge    under    18

U.S.C. § 371.        Adding to the confusion, however, it agreed with

White’s alternative argument that his sentence could not exceed

one year even under § 371, and that the Agreement’s reference to

a five-year maximum sentence was therefore erroneous.                         Plainly

frustrated at the fundamental disagreement that had arisen, the

district court noted that it had “the ability to reject the plea

agreement.”        J.A. 49.        But the district court decided instead to

continue     the    matter    so     that   the       Government   could    prepare   a

responsive memorandum. 3



      2The ACA provides for conformity in the law governing a
federal enclave and the law of the local jurisdiction, with
offenders guilty of a “like offense” and subject to a “like
punishment” as those who act on state property.    See 18 U.S.C.
§ 13. Had White conspired to break and enter dwellings on state
property, as opposed to Fort Bragg, in direct violation of North
Carolina General Statute 14-54, he would have been guilty of a
North Carolina Class I felony.    See N.C. Gen. Stat. §§ 14-2.4,
14-54. According to White, the maximum sentence for his Class I
felony would have been one year or less under the state
sentencing law then in effect, making the offense a misdemeanor
under federal law, see 18 U.S.C. § 3559(a).
      3The Government subsequently changed its position on the
latter point, arguing that White’s maximum sentence under § 371
would exceed one year and thus constitute a felony under federal
law. The district court ultimately agreed with the Government’s


                                            7
       At the resumed sentencing hearing, the district court ruled

that the parties “had mutually manifested their assent” to a

plea agreement under which White pleaded guilty under 18 U.S.C.

§ 371, rather than 18 U.S.C. § 13.                J.A. 217.      Assuming that the

Agreement itself was ambiguous on this point, the court held

that    the     plea   colloquy     had        clarified   the     matter   in    the

Government’s favor, confirming that White had pleaded guilty to

a   violation     of   the    federal     conspiracy       statute.      The     court

granted     the   Government’s      motion       for   downward      departure    and

imposed     a   sentence     of   time    served.      A    felony    judgment     was

entered on August 15, 2014, and this timely appeal followed.



                                          II.

                                          A.

       We   review     the    district     court’s     interpretation       of     the

parties’ plea agreement de novo.                  United States v. Wood, 378

F.3d 342, 348 (4th Cir. 2004).                 In construing a plea agreement,

we rely on general contract law principles.                      See United States

v. Harvey, 791 F.2d 294, 300 (4th Cir. 1986).                        But given the

context — the waiver of a defendant’s constitutional right to




revised position, and White challenges that decision on appeal
as well.    Because of our disposition of this case on other
grounds, we need not address that issue.



                                           8
trial and the implications for “public confidence in the fair

administration of justice” — we analyze plea agreements with

special scrutiny.       Id. (quoting United States v. Carter, 454

F.2d 426, 428 (4th Cir. 1972)).             The result is that the law

governing the interpretation of plea agreements is an “amalgam

of   constitutional,    supervisory,       and   private   [contract]   law

concerns.”    Id.   These concerns “require holding the Government

to a greater degree of responsibility than the defendant” for

any imprecision in a plea agreement, so that ambiguities are

construed against the Government.           Id.; see also United States

v. Jordan, 509 F.3d 191, 199–200 (4th Cir. 2007).

                                     B.

     One of contract law’s fundamental doctrines is that there

can be no agreement unless there is a “meeting of the minds.”

Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th Cir.

1979); see Restatement (Second) of Contracts §§ 17, 20 (1981).

In other words, the parties must have mutually assented to the

essential    elements   of   their       bargain.     Where   “substantial

confusion” calls into question whether there has been such a

meeting of the minds over a plea bargain, there is no valid

agreement to be enforced.       Houmis v. United States, 558 F.2d

182, 183 (3d Cir. 1977) (vacating sentence pursuant to guilty

plea in face of “doubt whether any ‘meeting of the minds’ ever

resulted from plea negotiations”); see United States v. Bradley,

                                     9
381 F.3d 641, 648 (7th Cir. 2004) (invalidating plea agreement

and vacating judgment because there was no meeting of the minds

on the nature of the charge to which the defendant pleaded).

       Here, there was more than enough confusion to call into

question whether the parties ever came to a meeting of the minds

over   the   precise   charge   to   which   White   was   pleading   guilty.

Most important, while the Government appears to have believed

that White was pleading guilty to federal conspiracy charges

under 18 U.S.C. § 371, the Agreement in fact listed a different

statute — “18 U.S.C. § 13 Assimilating N.C.G.S. § 14-54” — as

the “Code section violated.”         So fundamental a mismatch on what

is perhaps the most essential term of a plea agreement cannot

help but cast doubt on whether a valid agreement exists.

       The Government argues that although the Agreement nowhere

references 18 U.S.C. § 371, it nevertheless makes clear, read as

a whole, that White was pleading guilty to a violation of that

statute.     It notes that the Agreement three times cites “Count

One” of the indictment as the count to which White is pleading

guilty, and points as well to the Agreement’s specification of

five years as the maximum term of imprisonment, consistent with

18 U.S.C. § 371.        We are not persuaded that these contextual

clues are sufficient to override the express identification of

18 U.S.C. § 13 as the “Code section violated.”



                                      10
       Though the Agreement does refer several times to “Count

One,” Count One of the indictment, as discussed above, itself

begins by identifying a conspiracy to violate 18 U.S.C. § 13,

assimilating North Carolina’s breaking and entering law.                     Only

on the second page does it conclude with a charge under 18

U.S.C. § 371.         This is a complicated statutory scheme, and a

layperson could be forgiven for not understanding that Count One

does not charge a separate violation of 18 U.S.C. § 13.                       Cf.

Houmis,   558    F.2d      at   185   (invalidating    plea   agreement    where

layperson     may    not   have   understood   its     terms).    Indeed,     the

placement of the erroneous citation to 18 U.S.C. § 13 in the

Agreement     compounds     the   confusion,   suggesting     that   Count    One

does charge a violation of the Assimilative Crimes Act: section

three of the Agreement provides that “as to Count One of the

Indictment to which the Defendant is pleading guilty,” the “Code

section violated” is “18 U.S.C. § 13 Assimilating N.C.G.S. § 14-

54” (emphasis added).           Against all of that, the Agreement’s bare

reference to a five-year maximum term of imprisonment is not

enough to set the record straight, especially in light of the

uncertainty that arose at the sentencing hearing as to whether

that provision also might be in error, even assuming a plea

under 18 U.S.C. § 371.

       The Government also argues, and the district court agreed,

that   even     if   the    Agreement    itself   is    ambiguous,   the     plea

                                         11
colloquy       resolved           that          ambiguity      in       its    favor,     establishing

clearly that White pleaded guilty to a violation of 18 U.S.C.

§ 371.     In contract law, extrinsic evidence is often used to

interpret ambiguous agreements.                               See Glocker v. W.R. Grace &

Co., 974 F.2d 540, 544 (4th Cir. 1992) (“Alleged ambiguities

should    be    reconciled              .       .   .    by   admitting         relevant,        extrinsic

evidence.”).          And         we        have        suggested        before    that      a   district

court’s    guidance           at       a    plea        colloquy         may    effectively        resolve

ambiguities in a plea agreement.                               See Harvey, 791 F.2d at 303

(“[I]t    might       .       .    .       be       possible       to    establish      by       extrinsic

evidence       that       the          parties           to   an        ambiguously       worded       plea

agreement       actually           had          agreed-or          mutually       manifested           their

assent    to-an       interpretation                     as   urged       by    the   Government.”);

United States v. Bryant, 436 F. App’x 254, 256–57 (4th Cir.

2011) (plea colloquy confirms defendant’s interpretation of plea

agreement).       So perhaps under the appropriate circumstances an

oral colloquy could clarify that a defendant manifested his or

her   assent     to       a       statutory             charge      not    contained         within     the

written plea agreement.                      But given the fundamental nature of the

error in this Agreement, combined with the rule that we construe

ambiguities against the Government, we cannot be confident that

the   plea      colloquy               here          resolved       all        ambiguities        in    the

Government’s favor.



                                                         12
      We in no way find fault with the district court’s colloquy,

which amply met the requirements of Rule 11.               Fed. R. Crim. P.

11.   And it is true, as the Government argues, that the court

carefully advised White that he was pleading guilty to a felony

offense with a maximum sentence of five years and twice read

aloud Count One of the indictment.              But in reading Count One,

the district court, through no shortcoming of its own, simply

incorporated     the   same    statutory    complexities   discussed    above,

referring orally to a conspiracy in violation of 18 U.S.C. § 13,

assimilating North Carolina law, as well as to a charge under 18

U.S.C. § 371.      And in describing Count Two, the court called it

“another   violation      of    18   U.S.C.    §   13,   assimilating    North

Carolina General Statute 14-54,” (emphasis added) inadvertently

suggesting that Count One also charged a violation of 18 U.S.C.

§ 13 and thus lending support to White’s interpretation.

      To reiterate, the uncertainty in this case was not of the

district court’s making, and we appreciate that court’s efforts

to bring clarity to the situation.                 But there is sufficient

confusion on this record that we cannot say with any assurance

that the Agreement reflects a meeting of the minds on the charge

to which White was pleading guilty.                And in the context of a

guilty   plea,    where   fundamental       constitutional   rights     are   at

stake, we must be especially vigilant in finding a meeting of

the minds.     Cf. Boykin v. Alabama, 395 U.S. 238, 242–43 (1969)

                                       13
(refusing     to    accept     defendant’s          guilty    plea     without   an

affirmative showing that it was made voluntarily and without

ignorance    of    the   offense     charged    because      guilty    plea   waives

important constitutional rights).               Accordingly, we must vacate

White’s judgment of conviction, resting as it does on an invalid

plea agreement.      See Bradley, 381 F.3d at 648 (vacating judgment

predicated on plea agreement that did not reflect a meeting of

the minds).

     For the same reason, we must deny White’s request that he

be resentenced, on remand, for a violation of 18 U.S.C. § 13,

under the Agreement as he reads it.                 Where the parties have not

mutually manifested their assent to the same understanding of an

essential term, the result is that there simply is no valid plea

agreement to be enforced.            Instead, “we must discard the entire

agreement    and    require    [White]    and       the   [G]overnment   to   begin

their bargaining all over again.”              Id. (quoting United States v.

Barnes, 83 F.3d 934, 941 (7th Cir. 1996)).



                                       III.

     For the foregoing reasons, the judgment of the district

court   is   vacated     and   the    case     is    remanded    for   proceedings

consistent with this opinion.

                                                             VACATED AND REMANDED



                                         14
