                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 10-4170


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

RUFUS TYRONE NELSON, a/k/a Niborn, a/k/a Fat Cat,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., District Judge. (1:09-cr-00042-WO-1)


Submitted:   March 31, 2011                 Decided:   April 7, 2011


Before WILKINSON, AGEE, and DAVIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Richard S. Gottlieb, Richard D. Dietz, KILPATRICK STOCKTON, LLP,
Winston-Salem, North Carolina, for Appellant. John W. Stone,
Jr., Acting United States Attorney, Sandra J. Hairston,
Assistant United States Attorney, Greensboro, North Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Rufus Tyrone Nelson appeals from his convictions for

distribution of crack cocaine.                  On appeal, he argues that the

Government improperly threatened to breach the plea agreement if

he   did    not   withdraw    his    objections       to   drug     quantity    in    the

presentence report (PSR).             He also contends that he received

ineffective assistance of counsel when his attorney did not file

timely     objections    to    the    PSR       and   failed   to    object     to    the

Government’s alleged breach of the plea agreement.                         Finding no

error, we affirm.

             Nelson did not raise the plea agreement breach issue

in the district court, and this court’s review is therefore for

plain error.        See United States v. McQueen, 108 F.3d 64, 65-66

(4th Cir. 1997).        A plea agreement is breached when a government

promise that induced the plea goes unfulfilled.                        Santobello v.

New York, 404 U.S. 257, 262 (1971); United States v. Ringling,

988 F.2d 504, 506 (4th Cir. 1993).                    The burden lies with the

party      asserting    the    breach     to      establish    the     breach    by     a

preponderance of the evidence.              United States v. Snow, 234 F.3d

187, 189 (4th Cir. 2000); United States v. Dixon, 998 F.2d 228,

230 (4th Cir. 1993).

             This   court     construes     “plea      agreements     in   accordance

with principles of contract law so that each party receives the

benefit of its bargain.”             United States v. Holbrook, 368 F.3d

                                            2
415, 420 (4th Cir. 2004), vacated on other grounds, 545 U.S.

1125 (2005).        However, “‘[b]ecause a defendant’s fundamental and

constitutional rights are implicated when he is induced to plead

guilty by reason of a plea agreement,’ the Court analyzes the

agreement      ‘with       greater       scrutiny’             than    would     apply       to    a

commercial contract.”               Id.     The Government is bound only to

promises     actually       made    to     the       defendant.           United      States       v.

Peglera, 33 F.3d 412, 413 (4th Cir. 1994).

              The     Government          has        a     “heightened         responsibility

[extending] beyond the plea negotiation to all matters relating

to the plea agreement.”                  United States v. Wood, 378 F.3d 342,

348 (4th Cir. 2004).              The Government’s statements at sentencing

may modify a plea agreement.                     See United States v. Martin, 25

F.3d   211,    217     (4th       Cir.    1994).               Further,    during      the     plea

colloquy, all material terms of the agreement must be disclosed,

and the court must ascertain that the defendant understands each

of   these    terms.         If    the     district            court     mischaracterizes           a

material      term        that      sufficiently                alters     the       defendant’s

understanding        of    the    terms     of       his       plea,     and   the    Government

acquiesces      in        that    mischaracterization,                   the   plea      may       be

modified.      Wood, 378 F.3d at 349.

              Here,    the       language       of       the    plea     agreement     does       not

suggest that the Government breached its promise, nor do the

transcripts of the plea colloquy and sentencing suggest a breach

                                                3
or   threatened         breach.       The       plea    agreement      contained        no

stipulations or agreements concerning the base offense level,

other    than    if     the   offense       level      was   16   or   greater,        the

Government      would    recommend     the      third    level    of   reduction       for

acceptance of responsibility.

           At the plea colloquy, the district court ascertained

that Nelson understood that he was pleading guilty to counts

three and four, both distribution counts.                     Although, construing

the proceedings in a light most favorable to the Defendant, the

stipulations of fact to support the plea may have been amended

orally at the plea hearing, the plea agreement remained silent

on relevant conduct and the calculation of drug quantity for

sentencing      purposes.         Therefore,      the   Government’s       conduct      at

sentencing does not reflect a breach of the written agreement.

While    the    Government        stated     at     sentencing      that       it    would

recommend that Nelson not be given a reduction for acceptance of

responsibility if he persisted in his objections to the PSR, the

Government never made such a recommendation.                       Even if it had,

the plea agreement did not preclude such a recommendation.                              In

any event, Nelson withdrew his objections to the presentence

report    after       conferring       with       counsel     during       a        recess.

           Nelson pled guilty to offenses involving 22.3 grams of

crack cocaine, thereby exposing himself to a potential sentence

of five to forty years.              See 21 U.S.C. § 841(b)(1)(B) (2006).

                                            4
His sentence falls within this statutory range.                      Nelson failed

to meet his burden of showing that the Government breached the

plea agreement either by threatening to withdraw the recommended

decrease for acceptance of responsibility or by permitting his

base offense level to be calculated based on conduct in the

dismissed counts.            The plea agreement contained no express or

implied promise respecting the drug quantity calculation, and

neither the plea colloquy or the sentencing transcripts reflects

anything to the contrary that would constitute a modification of

the agreement.           Therefore, there is no plain error.

              Claims of ineffective assistance of counsel generally

are not cognizable on direct appeal.                United States v. King, 119

F.3d 290, 295 (4th Cir. 1997).                 Rather, to allow for adequate

development of the record, a defendant generally must bring his

claims in a 28 U.S.C.A. § 2255 (West Supp. 2010) motion.                        Id.;

United   States      v.     Hoyle,   33   F.3d   415,   418   (4th    Cir.    1994).

However, ineffective assistance claims are cognizable on direct

appeal   if        the     record    conclusively     establishes         ineffective

assistance.        United States v. Richardson, 195 F.3d 192, 198 (4th

Cir. 1999); King, 119 F.3d at 295.

              To    demonstrate      ineffective     assistance,      a    defendant

must   show    that       his   “counsel’s     representation   fell        below   an

objective standard of reasonableness,” and that the error was

“prejudicial to the defense” such that “there is a reasonable

                                           5
probability that, but for counsel’s unprofessional errors, the

result      of      the     proceeding          would        have        been       different.”

Strickland v. Washington, 466 U.S. 668, 688, 692, 694 (1984).

In the context of a plea agreement, where a defendant claims

ineffective assistance, the prejudice prong is satisfied where

the    defendant        shows   that        “there    is    a    reasonable         probability

that, but for counsel’s errors, he would not have pleaded guilty

and would have insisted on going to trial.”                              Hill v. Lockhart,

474 U.S. 52, 59 (1985).

             Here,        Nelson       cannot        demonstrate          that,        but       for

counsel’s alleged errors, the result would have been different.

Although Nelson’s counsel did not make timely objections to the

presentence        report,      the    district       court          stated    that    it    would

consider the objections.               Nelson, however, chose to withdraw the

objections.        As discussed above, the Government’s statement that

it    may   not     recommend      a    third       level       of    reduction       if    Nelson

continued to raise objections to drug quantity was not a breach

of    the   plea    agreement         and,    therefore,         failure       by   counsel       to

raise    such      an   objection       does    not    conclusively            appear       on   the

record to be an act of ineffective assistance of counsel.

             We therefore affirm the judgment.                            We dispense with

oral    argument        because       the    facts     and       legal        contentions        are




                                                6
adequately   presented   in   the   materials   before   the   court   and

argument would not aid the decisional process.

                                                                AFFIRMED




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