                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 14-4188


UNITED STATES OF AMERICA,

                 Plaintiff – Appellee,

          v.

THOMAS PATRIC BOGGS,

                 Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Lynchburg.   Norman K. Moon, Senior
District Judge. (6:13-cr-00015-NKM-1)


Submitted:   September 30, 2014              Decided:    October 3, 2014


Before DUNCAN    and   WYNN,   Circuit   Judges,   and   DAVIS,   Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Larry W. Shelton, Federal Public Defender, Fay F. Spence, First
Assistant Federal Public Defender, Roanoke, Virginia, for
Appellant. Timothy J. Heaphy, United States Attorney, Jean B.
Hudson, Assistant United States Attorney, Charlottesville,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Thomas Patric Boggs appeals from his 57-month sentence

imposed pursuant to his guilty plea to wire fraud.                              On appeal,

he contends that the Government breached his plea agreement by

failing      to     move     for     an    adjustment        for         acceptance       of

responsibility under U.S. Sentencing Guidelines Manual § 3E1.1

(2013).      Finding no breach, we affirm.

              Boggs’    plea       agreement      provided            that,     while    the

Government        believed   that    the     amount     of   loss        for    Guidelines

purposes exceeded $200,000, Boggs reserved the right to argue

that the loss amount was less than $200,000.                           In addition, the

Government agreed to recommend that the district court grant a

reduction     for    acceptance      of    responsibility         if     Boggs      complied

with   his    obligations      under      the    plea   agreement             and   accepted

responsibility for his conduct.                  Boggs stipulated that, if he

failed to accept responsibility for his conduct, he would not

receive credit for acceptance of responsibility.

              The   probation      officer      prepared     a    presentence         report

(“PSR”) concluding that Boggs had not satisfied the requirements

for    an      adjustment          for     acceptance            of      responsibility.

Specifically, the PSR relied on a statement submitted by Boggs,

through counsel.           In that statement, Boggs stated the he “did

not mean to commit a fraud.”                 Rather, he “just didn’t realize

that [the victim’s] continued investment in our business was

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contingent on his belief that he had already made a profit.”

The PSR concluded that Boggs did not truthfully admit or had

falsely denied the conduct comprising the offense of conviction

and his relevant conduct.

             At sentencing, Boggs challenged both the loss amount

and   the    failure       to       give     an   acceptance          of     responsibility

reduction.        As to the loss argument, Boggs averred that the

amount of loss should not encompass funds that were actually

invested    in    Dynamo,       a   company       owned    by       Boggs’    wife.       Boggs

argued that, while he did not intend to defraud the victim at

the outset of the scheme, he was nonetheless guilty because he

did not do with the money what he was supposed to do.                                    Boggs

distanced     himself      from      the     statement         he    gave    the    probation

officer, and his counsel stated that, if the written statement

submitted    by    Boggs      to     the   probation       officer          did    not   accept

complete responsibility, that was her fault as she had worded

the statement.

             After hearing testimony from the victim, Boggs, and

others, the district court ruled that, while Boggs had a right

under the plea agreement to argue and put on a truthful case

about the amount of loss, he did not have a right to commit

perjury     and   put    on     a    false    case.        The       court    found      Boggs’

statement    to    the   probation         officer        to    be    “unbelievable”        and

noted that the court knew Boggs’ counsel “well enough to know

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[that   she]    didn’t    misrepresent       .   .   .    anything.”          The    court

overruled Boggs’ objections, finding that the loss amount was

over $200,000, that Boggs’ objections to this loss amount and

his   relevant       conduct   were   frivolous,         and   that    Boggs    was    not

entitled to an acceptance of responsibility adjustment.                             Boggs’

Guidelines range was 46 to 57 months in prison.                               The court

imposed a sentenced of 57 months.

            Boggs now asserts that his admissions should have been

sufficient      to     satisfy    the   requirements           for     acceptance      of

responsibility. Because he reserved the right to contest the

loss amount, he contends that his arguments that part of the

money was legitimately invested in Dynamo or elsewhere should

not have excused the Government from moving for an acceptance of

responsibility credit.           Boggs also argues that the acceptance of

responsibility provision in the plea agreement is ambiguous as

there are no specifics as to how to decide whether or not Boggs

properly accepted responsibility.

            Plea agreements are grounded in contract law, United

States v. Chase, 466 F.3d 310, 314 (4th Cir. 2006), and the

Government breaches a plea agreement when a promise it made to

induce the plea goes unfulfilled.                See Santobello v. New York,

404 U.S. 257, 262 (1971).             When interpreting a plea agreement,

we    enforce    the    agreement’s     “plain       language     in    its    ordinary

sense.”    United States v. Jordan, 509 F.3d 191, 195 (4th Cir.

                                         4
2007) (internal quotation marks omitted).                          Where the terms of an

agreement     are    ambiguous,          they       must   be     construed         against    the

Government.         United States v. Harvey, 791 F.2d 294, 303 (4th

Cir.   1986).        However,          the    Government         will    not     be    bound   to

promises it did not make.                    United States v. Fentress, 792 F.2d

461,   464-65       (4th    Cir.       1986).         Boggs       bears       the     burden   of

establishing a breach of his plea agreement by a preponderance

of the evidence.           United States v. Snow, 234 F.3d 187, 189 (4th

Cir. 2000).

              As    noted    by    the       district          court    and     the   probation

officer, Boggs’ frivolous objections to the loss amount, his

written statement, and his testimony at sentencing all exhibited

an   effort    to    justify      or     explain       away      at     least    part    of    his

criminal conduct, and were thus inconsistent with an acceptance

of responsibility.          See United States v. May, 359 F.3d 683, 694

(4th Cir. 2004) (efforts to minimize role in offense and explain

away     conduct           are         inconsistent             with       acceptance          of

responsibility).           Contrary to Boggs’ assertions, the Government

did not withhold its recommendation based on Boggs’ reserved

right to challenge the loss amount.                        Instead, Boggs’ failure to

honestly and fully accept responsibility released the Government

from   any    requirement         to    make    such       a    recommendation.          Boggs’

actions were inconsistent with acceptance of responsibility, and



                                                5
he did far more than simply object in good faith to the loss

amount.

            Moreover,    the     plea     agreement’s     treatment         of     the

acceptance of responsibility reduction was not ambiguous: the

Government’s agreement to move for a reduction was based upon

the   requirement    that   Boggs    “accept       responsibility      for       [his]

conduct.”      Boggs’   attempts        to   minimize   his     culpability        by

stating repeatedly that he did not intend to defraud the victim

at the outset of the scheme, without presenting any credible

evidence to support his assertions, undermined any argument that

Boggs   appropriately    accepted       responsibility.       Moreover,          Boggs

failed to present any credible evidence to contradict the facts

presented in the PSR that Boggs made “no legitimate investments”

with the victim’s money.          Finally, both the probation officer

and the district court easily concluded that Boggs failed to

accept responsibility, which is further evidence the term is not

ambiguous.

            While    Boggs’      argument     finds     support        in    United

States v. Peglera, 33 F.3d 412 (4th Cir. 1994) (holding that

objecting to Guidelines’ calculations as specifically reserved

in the plea agreement is not a breach of the plea agreement,

even if the objection is overruled, and thus, Government is not

released     from   obligation     under     the    agreement     to    move      for

acceptance of responsibility), we conclude that the cases are

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distinguishable.      First, Boggs did more than simply argue the

loss amount in the manner he predicted at the Rule 11 hearing.

While his arguments at sentencing were all arguably related to

the loss issue, Boggs also denied fraudulent intent for a large

portion of his conduct.        At his plea hearing, Boggs averred that

he would be presenting documentary evidence showing that the

victim authorized investment of some of his funds in Dynamo and

authorized some of Boggs’ expenditures.              However, instead, Boggs

presented only one piece of documentary evidence (that was of

very limited relevance) 1 and then proceeded to contend that he

lacked   fraudulent   intent    as   to   a   substantial    portion     of   the

victim’s funds.       This testimony contradicted the PSR and the

Government   witnesses   at    sentencing      and    was   found   to   be   not

credible by the district court.           As Boggs’ conduct exceeded his

reserved rights, Peglera does not control this case. 2




     1
       Even if some of the victim’s money was sent to Dynamo,
there is no evidence as to whether that money was “invested”
with Dynamo or instead whether the payments were a loan, a gift,
or used to pay personal expenses.     Moreover, it appears that,
even without the disputed Dynamo payments, the loss was over
$200,000, rendering Boggs’ loss argument entirely frivolous.
     2
        In addition, Peglera’s plea agreement was stricter than
Boggs’.    Peglera’s agreement required a three-level acceptance
of responsibility reduction absent “changed circumstances due to
defendant’s conduct.”    Peglera, 33 F.3d at 413.    In contrast,
Boggs’ acceptance of responsibility reduction was conditional on
Boggs’ acceptance of responsibility for his conduct.



                                      7
          Based on the foregoing, we find that Boggs failed to

accept responsibility for his criminal and relevant conduct, and

the Government, therefore, did not breach the plea agreement.

Accordingly, we affirm Boggs’ sentence.   We dispense with oral

argument because the facts and legal contentions are adequately

presented in the materials before this court and argument would

not aid the decisional process.

                                                        AFFIRMED




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