                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-4983


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

JAMES H. WILKINS,

                  Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.    James R. Spencer, Chief
District Judge. (3:08-cr-00076-JRS-1)


Submitted:    September 24, 2009            Decided:   October 9, 2009


Before WILKINSON, GREGORY, and AGEE, Circuit Judges.


Dismissed in part; affirmed in part by unpublished per curiam
opinion.


Steven P. Hanna, Richmond, Virginia, for Appellant.       Dana J.
Boente, United States Attorney, Gurney W. Grant, II, Assistant
United States Attorney, Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            James          H.    Wilkins         pled     guilty,        pursuant       to   a    plea

agreement,       to    two       counts         of   bank   fraud,       in    violation         of   18

U.S.C. § 1344 (2006), and possession of firearms by a felon, in

violation       of    18     U.S.C.         §    922(g)(1)     (2006).             He   received      a

sentence of 108 months’ imprisonment and filed a timely appeal.

            The Government filed a motion to dismiss, contending

that Wilkins’s appeal is barred by the waiver contained in his

plea agreement.            In response, Wilkins filed a motion to compel,

asserting that the Government breached the plea agreement “by

pursuing the obstruction enhancement without sufficient evidence

and   advocating        for          the    loss     of   acceptance          of   responsibility

points.”     We deferred action on the Government’s motion pending

the submission of Appellant’s brief.

            In his brief, Wilkins contends that the district court

erred in enhancing his offense level for obstruction of justice,

failing     to        reduce          his       offense     level        for       acceptance         of

responsibility, and failing to require the Government to move

for an additional reduction for acceptance of responsibility.

The   Government’s              brief       reasserts       its    argument         that     Wilkins

waived    his    right          to    appeal;        asserts      that    the      district      court

correctly increased Wilkins’s offense level for obstruction of

justice, precluding any offense level reduction for acceptance

of responsibility; and contends that it did not breach the plea

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agreement in failing to move for an additional reduction for

acceptance of responsibility.             Because the primary issues raised

in Wilkins’s appeal are barred by the appellate waiver in his

plea agreement, we dismiss the appeal as to those issues.                               To

the extent Wilkins raises a claim not encompassed within the

scope of the appellate waiver, we affirm.

              Whether a defendant effectively waived his right to

appeal pursuant to a plea bargain is an issue of law that is

reviewed de novo.           United States v. Blick, 408 F.3d 162, 168

(4th   Cir.    2005).       Where   the     government      seeks      to    enforce    an

appeal   waiver      and    the    appellant      does     not    contend     that     the

government is in breach of its plea agreement, a waiver will be

enforced      if    the   record    shows       the   waiver     is   valid    and     the

challenged issue falls within the scope of the waiver.                          Id.     An

appeal waiver is valid if it is “the result of a knowing and

intelligent decision to forego the right to appeal.”                             United

States v. Broughton-Jones, 71 F.3d 1143, 1146 (4th Cir. 1995)

(internal quotation marks and citations omitted).                       Generally, if

the district court fully questions a defendant at his 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,

“we will not enforce an otherwise valid appeal waiver against a

defendant      if     the   government          breached    the       plea    agreement

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containing that waiver.”             United States v. Cohen, 459 F.3d 490,

495 (4th Cir. 2006).

            After reviewing the record, we find the district court

fully questioned Wilkins regarding his intent to waive his right

to appeal, and Wilkins does not suggest otherwise.                             Therefore,

Wilkins’s waiver is both valid and enforceable.                          Additionally,

it is immediately apparent that two of the issues raised by

Wilkins    on    appeal    –    whether          the    district      court    erred   in

enhancing the offense level for obstruction of justice and by

failing    to     reduce       the    offense          level    for     acceptance     of

responsibility — are within the scope of the appeal waiver.                            In

Wilkins’s plea agreement, he explicitly waived “the right to

appeal    the    conviction     and    any       sentence      within    the   statutory

maximum described above (or the manner in which that sentence

was determined).”         As both these issues concern “the manner in

which [his] sentence was determined,” it is clear that, unless

the Government breached its plea agreement, these issues are

barred by Wilkins’s appeal waiver.

            When a claim of breach of a plea agreement has been

preserved, we review the district court’s factual findings for

clear    error    and   its    “application            of   principles    of    contract

interpretation de novo.”             United States v. Bowe, 257 F.3d 336,

342 (4th Cir. 2001).           However, because Wilkins did not claim in

the district court that the Government had breached the plea

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agreement, our review is for plain error.                                    Puckett v. United

States, 129 S. Ct. 1423, 1428 (2009).

                  Plea agreements are grounded in contract law, and both

parties should receive the benefit of their bargain.                                   Bowe, 257

F.3d at 345.             The Government breaches the plea agreement when a

promise       it        made        to    induce        the    plea         goes     unfulfilled.

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         for     imprecision       or

ambiguities in plea agreements.                          United States v. Harvey, 791

F.2d       294,    300-01          (4th    Cir.    1986).           Where    an     agreement    is

ambiguous in its terms, the terms must be construed against the

Government.                  Id.    at     300,     303.            However,       “[w]hile     the

[G]overnment must be held to the promises it made, it will not

be bound to those it did not make.”                           United States v. Fentress,

792 F.2d 461, 464-65 (4th Cir. 1986).

                  Wilkins asserts that the Government breached the plea

agreement          by    “pursuing         the     obstruction         enhancement        without

sufficient evidence” and “advocating for the loss of acceptance

of responsibility points.”                      Wilkins’s assertions are unsupported

by the record.                 The Government filed a lengthy chronology of

Wilkins’s statements to investigators, replete with instances in

which       Wilkins          purposefully         misled      FBI    agents        regarding    the

whereabouts             of    various          assets.         The     chronology        compared

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statements made by Wilkins to investigators to those he made in

letters   to   a     friend,     instructing       the       friend    to    sell   several

assets in order to prevent their seizure.                        This chronology was

incorporated        by   the    probation       officer        into    the     presentence

report.   Moreover, the plea agreement contained no agreement by

the   Government         to     refrain      from        seeking       an      obstruction

enhancement.

             Similarly,         contrary     to     Wilkins’s          assertions,       the

Government’s        agreement     to   move       for    an    additional        one-level

acceptance     of    responsibility         reduction         was     dependent     on   his

qualifying     for       the    two-level       decrease        of     U.S.     Sentencing

Guidelines     Manual         § 3E1.1(a)    (May        1,    2008).          Because    the

district judge determined at sentencing that Wilkins did not

qualify for the two-level reduction because of his obstruction

of justice, the Government was not obligated to move for an

additional one-level decrease, and it did not breach the plea

agreement by failing to do so.

           As the Government did not breach its plea agreement

with Wilkins, the issues of whether the district court erred in

denying   Wilkins         a     two-point       reduction        for     acceptance       of

responsibility and increasing his offense level for obstruction

of justice are barred by the appeal waiver contained in his plea

agreement.     Finally, it is unclear whether Wilkins intended to

raise the Government’s alleged breach of the plea agreement as a

                                            6
separate issue or merely a method by which to avoid enforcement

of the plea agreement.          To the extent that Wilkins raises this

as a separate issue, we find that it is without merit, for the

reasons stated above.           Accordingly, we grant the Government’s

motion    to   dismiss    in   part    and     affirm   the    judgment    of    the

district    court.       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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