                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 06-5203



UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.


CURTIS LYNN MORGAN,

                Defendant - Appellant.



                            No. 06-8055



UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.


CURTIS LYNN MORGAN,

                Defendant - Appellant.



Appeals from the United States District Court for the Western
District of Virginia, at Roanoke. James C. Turk, Senior District
Judge. (7:03-cr-00084; 7:05-cv-00636)


Argued:   March 20, 2008                   Decided:   July 3, 2008
Before TRAXLER, Circuit Judge, HAMILTON, Senior Circuit Judge, and
David R. HANSEN, Senior Circuit Judge of the United States Court of
Appeals for the Eighth Circuit, sitting by designation.


Affirmed in part; vacated and remanded in part by unpublished per
curiam opinion.


ARGUED: Paul Graham Beers, GLENN, FELDMANN, DARBY & GOODLATTE,
Roanoke, Virginia, for Appellant. Jean Barrett Hudson, OFFICE OF
THE UNITED STATES ATTORNEY, Charlottesville, Virginia, for
Appellee.   ON BRIEF: John L. Brownlee, United States Attorney,
Donald R. Wolthuis, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

     Curtis Lynn Morgan challenges his guilty plea and sentence by

means of a direct appeal and an action for collateral review under

§ 2255, which have been consolidated before this court.           For the

reasons that follow, we affirm the district court’s denial of

Morgan’s claim that the government breached the plea agreement as

well as the dismissal of Morgan’s ineffective assistance claim

under § 2255.     We remand, however, for re-sentencing under the

advisory Guidelines in accordance with the remedial scheme set

forth in United States v. Booker, 543 U.S. 220 (2005).



                                    I.

     Morgan was indicted on nine drug-distribution counts stemming

from his involvement in a drug-trafficking conspiracy that operated

in Roanoke, Virginia, and elsewhere between May 2001 and December

2002.    During the ensuing plea negotiations, Assistant United

States Attorney (“AUSA”) Ruth Plagenhoef sent a letter to Morgan’s

attorney stating that various co-conspirators had decided to plead

guilty   and   that   there   was   strong   evidence   against   Morgan,

specifically in regard to Morgan’s using or carrying firearms in

connection to drug trafficking.      The letter also stated:      “I hope

this [letter] helps Mr. Morgan understand the strength of the

evidence against him and my view of his relative culpability.           I

think a deal in which he gets 15 years instead of 65 is pretty


                                     3
fair.   Call me if you have more questions or if I need to get ready

for trial.”    J.A. 187.

     On March 5, 2004, Morgan entered into a written plea agreement

under which Morgan agreed to plead guilty to four counts of the

indictment:    conspiracy to distribute (count one); possessing with

intent to distribute (count eight); and two counts charging that

Morgan used or carried a firearm in relation to a drug-trafficking

offense (counts two and nine).        According to the terms of the

agreement, Morgan “underst[ood] that if convicted as charged . . .

[he would] be facing at least 65 years imprisonment.”       J.A. 16.

Therefore, he intended “to enter into this plea agreement that

provides as a practical matter that [he] receive a 40 year sentence

together with an opportunity to reduce [his] sentence through

cooperation with the United States.”     J.A. 16.   Morgan waived his

right to appeal “any sentencing guidelines factors or the Court’s

application of the sentencing guidelines factors to the facts of

[his] case.”    J.A. 21.   Morgan “further agree[d] to waive [the]

right to collaterally attack, pursuant to . . . section 2255, the

judgment and any part of the sentence imposed . . . by the Court.”

J.A. 22.

     By signing the agreement, Morgan also acknowledged that “no

one has promised . . . [that] a substantial assistance motion will

be made on [his] behalf” and “agree[d] that th[e] plea agreement

[was] not contingent in any way on the [government] making a


                                  4
substantial assistance motion.”             J.A. 23.      Additionally, the

agreement reflected Morgan’s “understand[ing] that any motion for

a departure made in this case [would] only be made to reduce [his]

sentence under Count Nine” and that “the U.S. [would] not agree to

a   departure   below   the   fifteen      year   mandatory   minimum   total

sentences of Counts One and Two.”          J.A. 24.

       Finally, the agreement included the following language: “This

Plea    Agreement   supersedes   all    prior     understandings,   promises,

agreements, or conditions, if any, between the United States and

[Morgan]. . . . [Morgan has] consulted with [his] attorney and

fully understand[s] all [his] rights with respect to the offenses

charged in the pending indictment. . . .           Being aware of all of the

possible consequences of [his] plea, [Morgan has] independently

decided to enter this plea of [his] own free will.”            J.A. 27.

       On March 5, 2004, the district court conducted a guilty-plea

hearing.    After the court recounted the charges and the applicable

mandatory minimums, Morgan indicated he understood that count one

(conspiracy) carried a mandatory 10-year minimum sentence (and a

maximum of forty years); that count two (using and carrying)

carried a five- year mandatory consecutive sentence; and that count

nine (using and carrying) carried a 25-year mandatory consecutive

term.    (Supp. J.A. 5-6).    Morgan agreed that he was satisfied with

his lawyer and that, having discussed his potential sentence with




                                       5
counsel, he understood the potential sentence was “subject to the

sentencing guidelines.”         Supp. J.A. 14.

        Before accepting Morgan’s plea, the district court noted that

both the United States Attorney and the court had explained “the

minimum mandatory and maximum sentences for these offenses, [and]

the fact that they are subject to the sentencing guidelines.”

Supp. J.A. 17.        The court found “as a matter of fact [that Morgan]

understands these” and that he understands “the consequences of

entering pleas of guilty.”           Supp. J.A. 17.

        Finally, the court asked if Morgan had gone over the plea

agreement with his attorney and whether Morgan understood what he

was agreeing to; Morgan answered yes to both questions.                   The court

then explained to Morgan that “if you are sentenced within the

guideline range, you will waive and give up your right to appeal

these       sentences,   and   you   are   also   giving    up     your   right   to

collaterally attack the sentences by way of habeas corpus petition.

.   .   .     [T]he   government     may   or   may   not   file   a   substantial

assistance motion in your case.            If the government does file such

a motion, then the court is free to depart below the guidelines in

fixing your sentence.”         Supp. J.A. 18-19.

        Prior to sentencing, the government moved for a substantial

assistance departure as to count nine (using and carrying under

§ 924(c)), which carries a 25-year consecutive mandatory minimum

sentence.        The government’s motion was made under 18 U.S.C.A.


                                           6
§ 3553(e), thus providing the district court with the authority to

impose a sentence below the statutory mandatory minimum.

      On     October   14,   2004,     the       district    court   held   Morgan’s

sentencing hearing. The court granted the government’s substantial

assistance motion as to count nine.                    The government took the

position that any sentence for count nine was required to run

consecutively, but then suggested that the court simply impose a

one-day sentence on count nine.                 The district court accepted the

government’s suggestion, thereby avoiding the 25-year sentence that

would otherwise have been required for count nine.

      Unfortunately for Morgan, he was a career offender under

§   4B1.1,    which    resulted   in    a       sentencing   range   for    the   drug

trafficking conspiracy charge (count one) and possession charge

(count eight) of 262-322 months.                  The district court sentenced

Morgan to 262 months, the lowest sentence possible before Booker,

but the court was required to add the five-year consecutive term

for using and carrying a firearm under § 924(c), yielding a

sentence of 322 months.

      After the judge announced the sentence, Morgan expressed

surprise and said he thought he was getting 15 years:

           [MORGAN]: . . . It was my understanding from my
      guilty plea I was to receive a 15-year sentence. That
      was my understanding, if I was to plead guilty to the
      charges, that I would receive a 15-year sentence. I just
      don’t know what happened to the agreement.




                                            7
          THE COURT: I don’t know either. And I don’t think
     that would have been out of the ballpark. I think that
     maybe would have been fair.

          [MORGAN]: Because I have that on paper from [AUSA]
     Plagenhoef, in my cell, Your Honor. [referring to the
     March 1, 2004 letter].

          THE COURT:   That you would get 15 years?

          [MORGAN]: 15 years, yes, sir, if I was to plead
     guilty, and avoid a 65-year sentence.

           THE COURT: . . . I don’t think that was included in
     the plea agreement.    Does the US Attorney know about
     this?

          [AUSA] WOLTHUIS: . . . [T]he plea agreement
     certainly reduced his exposure under the statutory
     minimum mandatories, from 40 to 15. . . . I don’t know if
     that’s what Morgan is referring to, but I suspect [it]
     was, that the minimum mandatories would be reduced that
     amount. But I’m aware of no conversations relating to
     coming in with a fixed recommendation that would ignore
     the sentencing guidelines.

J.A. 59-60.

     On October 13, 2005, Morgan filed a § 2255 petition, alleging

that his attorney provided ineffective assistance of counsel by

failing to file a direct appeal of the sentence after Morgan asked

him to do so and by failing to explain adequately the consequences

of the guilty plea such that Morgan did not enter into it knowingly

and voluntarily.

     The government moved to dismiss, arguing that Morgan expressly

waived his right to raise a collateral challenge.     The district

court agreed, concluding that the waiver provision in the plea

agreement was valid and effective:   “Review of the . . .   Rule 11


                                 8
colloquy   clearly   demonstrates   that    petitioner   knowingly   and

voluntarily waived his right to file this § 2255 motion attacking

his sentence.”   J.A. 131.    The court found that Morgan’s claim

“that he was unaware of the consequences of his guilty plea, [was]

inconsistent with statements he made under oath,” J.A. 133-34,

noting that Morgan affirmed his understanding of the “maximum

penalties . . . as well as the fact that the court was free to

sentence him up to the statutory maximum.”      J.A. 133.   The district

court therefore dismissed Morgan’s claim that counsel’s ineffective

assistance resulted in a guilty plea that was not knowing and

voluntary.1

     The district court concluded, however, that the failure-to-

appeal claim fell outside of the waiver provision and that an

evidentiary hearing was required.       Based on the evidence presented

at the hearing, the district court found that “Morgan unequivocally

conveyed to [his attorney] his desire to file an appeal of the

sentence by asking [his lawyer], ‘Can I appeal?’”        J.A. 193.   The

court found

     credible Morgan’s testimony that in reliance on the
     express mention of a fifteen-year sentence in [AUSA]
     Plagenhoef’s letter and in the plea agreement, Morgan


     1
      The court later granted a certificate of appealability on
this issue, concluding that, in light of the fact that Morgan
believed he would get a fifteen-year sentence, “it is at least
debatable that counsel’s discussions with Morgan regarding the plea
agreement and its consequences fell below a reasonable professional
standard” and that competent advice would have caused him to reject
the plea agreement. J.A. 216.

                                    9
     pled guilty because he believed he would receive a
     sentence of fifteen years. The court also finds . . .
     that Morgan asked [his attorney] at sentencing for a copy
     of the [Plagenhoef letter] in order to prove the fifteen-
     year sentence agreement to the court. This fact is borne
     out by Morgan’s statements during the sentencing hearing
     and counsel’s testimony at the evidentiary hearing that
     he remembered Morgan expressing disappointment that the
     sentence was more than fifteen years.

J.A. 193.   The court therefore granted Morgan’s § 2255 motion as to

the failure to appeal claim to provide Morgan with a “renewed

opportunity to appeal.” J.A. 194. The district court directed the

“clerk [to] prepare a new judgment . . . in every respect the same

as the previous judgment except as to date of entry,” J.A. 195, and

the court on November 14, 2006, entered an amended judgment, thus

resetting the appeal clock.      Morgan timely appealed from the

amended judgment.



                                 II.

                                 A.

     In his direct appeal, Morgan contends that the government

breached the plea agreement by failing to move for a downward

departure to a sentence of fifteen years total, and he seeks

specific performance of this purported promise.




                                 10
     Issues involving the interpretation of plea agreements are

reviewed de novo.     See United States v. Wood, 378 F.3d 342, 348

(4th Cir. 2004).2    In interpreting a plea agreement, we are

     guided by contract law, and parties to the agreement
     should receive the benefit of their bargain. Because a
     defendant’s fundamental and constitutional rights are
     implicated when he is induced to plead guilty by reason
     of a plea agreement, our analysis of the plea agreement
     or a breach thereof is conducted with greater scrutiny
     than in a commercial contract.

United States v. McQueen, 108 F.3d 64, 66 (4th Cir. 1997) (internal

quotation marks and footnotes omitted); see United States v.

Ringling, 988 F.2d 504, 506 (4th Cir. 1993) (“Plea bargains rest on

contractual principles, and each party should receive the benefit

of its bargain.”).    The government breaches a plea agreement when

it fails to fulfill a promise that “can be said to be part of the

inducement or consideration” for the plea agreement. Santobello v.

New York, 404 U.S. 257, 262 (1971).

     Morgan   contends   that   AUSA    Plagenhoef,   on   behalf   of   the

government, promised to move for a downward departure to a sentence



     2
      We are not convinced that Morgan raised the specific
performance issue before the district court. When the defendant
fails to raise such an issue before the district court, he must
establish that plain error occurred, meaning 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, 66
(4th Cir. 1997) (internal quotation marks and alteration omitted).
Because we conclude that the government fulfilled its obligations
in connection to Morgan’s guilty plea, we need not decide whether
Morgan raised this issue below because he loses regardless of which
standard of review is applied.

                                   11
of fifteen years based on Morgan’s substantial assistance.                         This

promise, Morgan claims, is reflected in the March 1 Plagenhoef

letter commenting on the strength of the evidence against Morgan

and stating that “a deal in which [Morgan] gets 15 years instead of

65 is pretty fair.”             J.A. 187.         Morgan claims that the formal

written plea agreement, which was executed on March 4, is not to

the contrary and, in fact, confirms his understanding that he would

receive a recommendation of fifteen years in exchange for his

cooperation with the government.                   In particular, he relies on

section 15 of the plea agreement, which addresses the opportunity

for    Morgan   to    earn      a    more   favorable      sentence     by   providing

substantial assistance to the government. Section 15 also contains

the following limitation, which was initialed by Morgan:                                “I

understand that any motion for a departure made in this case will

only be made to reduce my sentence under Count Nine of the

Indictment,     that      is,   the    United     States   will   not    agree     to   a

departure below the fifteen year mandatory minimum total sentences

of Counts One and Two.”             J.A. 24.     Morgan believes that implicit in

this   language      is   the       government’s     confirmation     that    it   will

recommend that the court depart to fifteen years but no less.

       We disagree.        The plea agreement contained a merger clause

that provided in relevant part as follows:

       This writing sets forth the entire understanding between
       the parties and constitutes the complete Plea Agreement
       between the United States Attorney . . . and me, and no
       other additional terms or agreements shall be entered

                                            12
       except and unless those other terms or agreements are in
       writing and signed by the parties. This Plea Agreement
       supercedes   all    prior   understandings,    promises,
       agreements, or conditions, if any, between the United
       States and me.

J.A. 27 (emphasis added).          Therefore, to the extent the Plagenhoef

letter reflects any promise made by the government, the subsequent

plea agreement supercedes it. See United States v. Davis, 393 F.3d

540, 546 (5th Cir. 2004); United States v. Fagge, 101 F.3d 232, 234

(2nd Cir. 1996); see also United States v. Hunt, 205 F.3d 931, 935

(6th    Cir.    2000)   (“An   integration       clause   normally   prevents     a

criminal defendant, who has entered into a plea agreement, from

asserting      that   the   government    made    oral    promises   to   him   not

contained in the plea agreement itself.”).

       Looking to the four corners of the written plea agreement, we

find     no    language     promising    that    in   exchange   for      Morgan’s

substantial assistance, the government would move for a downward

departure that yields a sentence of 15 years.                Instead, the plea

agreement required Morgan to acknowledge that “no one has promised

me that such a ‘substantial assistance’ motion will be made on my

behalf” and that the “plea agreement is not contingent in any way

on the United States making a substantial assistance motion.” J.A.

23.    The plea agreement does provide that if, in the opinion of the

United    States      Attorney’s    office,      Morgan   successfully     offers

substantial assistance to the government, “then a motion will be

made at my sentencing . . . requesting that the Court depart from


                                         13
the Sentencing Guidelines, and sentence at a lesser level than

would otherwise be found to be the applicable guidelines sentence.”

J.A. 24.     And, in fact, the government did seek a departure on

count nine, and Morgan received a one-day sentence on that count.

The government therefore fulfilled its obligations under the plea

agreement.

     However,    the   plea   agreement   expressly   states   that   the

government would move for a downward departure, if at all, on count

nine only, and that it would not seek a departure for counts one

and two.     The sentence Morgan received was a function of his

designation as a career offender with regard to count one, a charge

for which the government had not agreed to even consider seeking a

downward departure.      Thus, there is no language in the plea

agreement that can be interpreted as requiring the government to

seek a total sentence of fifteen years.

     For the foregoing reasons, we conclude that Morgan has failed

to establish that the government breached the plea agreement, much

less that any “breach was so obvious and substantial that failure

to notice and correct it [would] affect[] the fairness, integrity

or public reputation of the judicial system.” McQueen, 108 F.3d at

66 (internal quotation marks omitted).

                                   B.

     Alternatively, Morgan asserts that re-sentencing is required

under Booker, reasoning that the district court, in resetting the


                                   14
time for Morgan to file a direct appeal, ran afoul of Booker by

simply re-imposing the original sentence that the court imposed in

2004 under what was then a mandatory sentencing regime under the

Guidelines.    See United States v. White, 406 F.3d 827, 835 (7th

Cir. 2005) (explaining that because Booker rendered the Sentencing

Guidelines    advisory,   “the   mere   mandatory   application   of   the

Guidelines--the district court’s belief that it was required to

impose a Guidelines sentence--constitutes error”).         Morgan argues

that because the district court indicated that it would have

imposed a lower sentence if not for the Guidelines, his substantial

rights were affected by the Booker error.           See United States v.

White, 405 F.3d 208, 223-24 (4th Cir. 2005). The government agrees

that the matter should be remanded for re-sentencing under the

advisory Guidelines scheme in accordance with Booker.

     For the reasons suggested by the parties, we agree that Morgan

should by re-sentenced in accordance with Booker.          Therefore, we

vacate Morgan’s sentence and remand for the limited purpose of re-

sentencing under the advisory Guidelines in accordance with the

remedial scheme set forth in Booker.



                                  III.

     Having been issued a certificate of appealability by the

district court, Morgan also challenges the district court’s denial

of his § 2255 claim that his guilty plea was invalid because


                                   15
counsel provided ineffective assistance in failing to advise Morgan

adequately regarding the consequences and potential prison time

resulting from his guilty plea.         See Strickland v. Washington, 466

U.S. 668, 687 (1984) (ineffective assistance claim requires showing

that “counsel’s performance was deficient” and “the deficient

performance prejudiced the defense”).            The district court did not

reach the merits, however, dismissing the claim based on the

court’s conclusion that the plea agreement contained a valid waiver

of collateral-attack rights which barred Morgan from bringing his

§ 2255 action.    We review a district court’s denial of relief under

§ 2255 de novo.       See United States v. Nicholson, 475 F.3d 241, 248

(4th Cir. 2007).

     As part of a plea agreement, “a criminal defendant may waive

his right to attack his conviction and sentence collaterally, so

long as the waiver is knowing and voluntary.”                United States v.

Lemaster, 403 F.3d 216, 220 (4th Cir. 2005).                   Morgan’s plea

agreement contained a broad and express waiver of the right to

collaterally attack the judgment or sentence imposed by the court.

During   the   Rule    11   colloquy,   Morgan    affirmed   under   oath   his

understanding of both the potential consequences of his pleading

guilty and his agreement not to raise a collateral challenge to his

convictions or sentences.        Morgan testified that he had reviewed

the plea agreement with his lawyer and understood its provisions.

He was presented with the potential penalties associated with the


                                        16
various charges and affirmed that he understood these penalties.

Additionally, Morgan affirmed his understanding that, in pleading

guilty according to the terms of the plea agreement, he was

“waiv[ing] and giv[ing] up [his] right to appeal these sentences,”

and that he was “also giving [his] right to collaterally attack the

sentences by way of habeas corpus petition.”            Supp. J.A. 18-19.

       As the district court pointed out, Morgan’s assertions on

appeal contradict his testimony at the Rule 11 colloquy:              Morgan’s

“current claim that he was unaware of the consequences of his

guilty plea, is inconsistent with statements he made under oath.”

J.A.   134.   “A   defendant’s   solemn        declarations    in   open   court

affirming a plea agreement carry a strong presumption of verity

because courts must be able to rely on the defendant’s statements

made under oath during a properly conducted Rule 11 plea colloquy.”

Lemaster, 403 F.3d at 221 (citation, internal quotation marks, and

alterations omitted).     In fact, “in the absence of extraordinary

circumstances,     allegations   in   a    §   2255   motion   that   directly

contradict the petitioners sworn statements made during a properly

conducted Rule 11 colloquy are always ‘palpably incredible,’ and

‘patently frivolous or false.”        Id. (citations omitted).

       We agree, therefore, that Morgan knowingly and voluntarily

waived his right to raise a collateral attack and we affirm the

district court’s dismissal of Morgan’s § 2255 claim.




                                      17
                               IV.

     As set forth above, we affirm the district court’s denial of

Morgan’s claim that the government breached the plea agreement as

well as the dismissal of Morgan’s claim for relief under § 2255.

We remand, however, for re-sentencing under the advisory Guidelines

in accordance with the remedial scheme set forth in Booker.



                                                 AFFIRMED IN PART;
                                      VACATED AND REMANDED IN PART




                                18
