                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 10-4706


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

COLLINS KUSI SAKYI,

                Defendant - Appellant.



                              No. 11-4635


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

COLLINS KUSI SAKYI,

                Defendant - Appellant.



Appeals from the United States District Court for the Eastern
District of Virginia, at Alexandria.     Leonie M. Brinkema,
District Judge. (1:06-cr-00405-LMB-1)


Submitted:   March 30, 2012                 Decided:    August 14, 2012


Before MOTZ and    KING,    Circuit   Judges,   and    HAMILTON,   Senior
Circuit Judge.
Dismissed in part, affirmed in part, and remanded by unpublished
per curiam opinion.


John L. Machado, LAW OFFICE OF JOHN MACHADO, Washington, DC, for
Appellant. Neil H. MacBride, United States Attorney, Thomas J.
Krepp, Special Assistant United States Attorney, Alexandria,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

               Pursuant      to    a     plea       agreement,     Collins       Kusi        Sakyi

pleaded guilty to drug offenses, aiding and abetting failure to

appear, obstruction of justice, and conspiracy to cause flight

to avoid prosecution.                  The district court sentenced him to a

total term of imprisonment of 320 months.                         In these consolidated

appeals,    Sakyi       argues     that       the    district     court    erred       when      it

denied his suppression motion, improperly enhanced his sentence

based on his role as a supervisor or manager, and failed to

adjust     his       criminal       history          category      upon     vacating            and

reentering his conviction.                He also asserts that the Government

breached the plea agreement.                    The Government seeks to enforce

the    appellate       waiver      provision         of   the    plea     agreement.            We

dismiss in part, affirm in part, and remand.

               Sakyi     argues         that        the   Government        violated            the

provision       of     the     plea      agreement        prohibiting           the       use   of

information       he     provided        to     enhance     his    sentence           when      the

Government       referenced         at     the       sentencing      hearing          a      self-

incriminating          statement       Sakyi     made     during    plea    negotiations.

“It is settled that a defendant alleging the Government’s breach

of a plea agreement bears the burden of establishing that breach

by a preponderance of the evidence.”                      United States v. Snow, 234

F.3d 187, 189 (4th Cir. 2000); see United States v. Cohen, 459

F.3d    490,     495    (4th      Cir.    2006)       (“[W]e     will     not    enforce         an

                                                3
otherwise       valid     appeal        waiver         against     a    defendant       if   the

government        breached        the        plea        agreement       containing          that

waiver.”).        Because        Sakyi       did       not   raise     this    claim    in   the

district court, we review it for plain error.                                 See Puckett v.

United     States,        556     U.S.        129,        134-35       (2009)    (discussing

standard).       To prevail under this standard, Sakyi must show not

only that the Government plainly breached the plea agreement,

but also that he was prejudiced by the error and that “the

breach was so obvious and substantial that failure to notice and

correct    it    [would     affect]          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 omitted).

            With these standards in mind, our review of the record

leads us to conclude that Sakyi has failed to establish the

Government breached the plea agreement.                            It is clear that the

Government       obtained        the        challenged        information        through       an

independent       source,        as    Sakyi       repeated      his    boasts     about      the

percentage       of     heroin         he     trafficked         from     Africa        to    co-

conspirators       who,     in    turn,       recounted        them     to    investigators.

Sakyi is entitled to no relief on this claim.

            Pursuant to a plea agreement, a defendant may waive

his appellate rights.                 United States v. Manigan, 592 F.3d 621,

627 (4th Cir. 2010).              A waiver will preclude an appeal of “a

                                                   4
specific issue if . . . the waiver is valid and . . . the issue

being    appealed       is    within       the    scope       of    the    waiver.”         United

States    v.     Blick,      408      F.3d    162,      168     (4th      Cir.    2005).         The

question    of       whether     a    defendant        validly       waived      his     right    to

appeal is a question of law that this court reviews de novo.

Manigan, 592 F.3d at 626.

               “An    appellate           waiver       is     valid       if     the     defendant

knowingly       and    intelligently             agreed       [to    waive       the     right    to

appeal].”       Id. at 627.           To determine whether a waiver is knowing

and intelligent, we examine “the totality of the circumstances.”

Id. (internal quotation marks omitted).                            “An important factor in

such an evaluation is whether the district court sufficiently

explained the waiver to the defendant during the Federal Rule of

Criminal Procedure 11 plea colloquy.”                         Id.; see United States v.

Johnson, 410 F.3d 137, 151 (4th Cir. 2005).

               We note that the district court fully complied with

Fed. R. Crim. P. 11.                 Sakyi does not challenge the validity of

the   waiver,        and   the       record      reveals      that     the     district      court

reviewed       the    waiver         in   some        detail.          The     district      court

explained that, by pleading guilty, Sakyi was waiving his right

to appeal the district court’s denial of his suppression motion

and, additionally, the appellate wavier provision would prevent

him from appealing his convictions or sentence.                                   Moreover, in

its     brief,       the     Government          sought       to    enforce        the     waiver.

                                                  5
Accordingly, we decline to review the denial of Sakyi’s motion

to suppress or the application of the leadership and recency

sentencing enhancements.

             Accordingly, we dismiss the appeal of the denial of

Sakyi’s suppression motion and the application of the challenged

sentencing     enhancements    based     upon      Sakyi’s   valid      waiver   of

appellate rights.      We affirm the judgment of the district court

with respect to Sakyi’s contention that the Government breached

the terms of the plea agreement.                We remand to the district

court with instructions for the court to correct the judgment,

pursuant to Fed. R. Crim. P. 36, to reflect that the statute of

conviction for aiding and abetting the failure to appear (Count

13) is 18 U.S.C. § 3146(a)(1).           Finally, as Sakyi is represented

by counsel, we deny Sakyi’s motion to file a pro se supplemental

brief.     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.

                                                             DISMISSED IN PART,
                                                              AFFIRMED IN PART,
                                                                   AND REMANDED




                                       6
