                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 13-4295


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ROBERT PAIGE PETERSON, a/k/a Robbie,

                Defendant - Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling.    John Preston Bailey,
Chief District Judge. (5:12-cr-00020-JPB-JES-3)


Submitted:   October 24, 2013             Decided:   November 7, 2013


Before WILKINSON, GREGORY, and SHEDD, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Charles T. Berry, Fairmont, West Virginia, for Appellant.
William J. Ihlenfeld, II, United States Attorney, Randolph J.
Bernard, Robert H. McWilliams, Jr., Assistant United States
Attorneys, Wheeling, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Robert       Peterson          pled       guilty,     pursuant      to      a   written

plea    agreement,          to    one     count       of      conspiracy      to    possess          with

intent       to    distribute           and    to     distribute           Schedule     I      and    II

Controlled              Substances,            in         violation          of       21        U.S.C.

§§ 841(b)(1)(c),            846       (2006).         He      appeals,      claiming        that     the

government breached the plea agreement by failing to move for a

downward departure pursuant to U.S. Sentencing Guidelines Manual

(USSG) § 5K1.1 (2012).                  The Government has moved to dismiss the

appeal based on the waiver in the plea agreement.                                              For the

reasons that follow, we dismiss the appeal.

               Where the government seeks to enforce an appeal waiver

and did not breach its obligations under the plea agreement, the

court    will       enforce       the    waiver          if    the   defendant’s        waiver       was

knowing and intelligent and the issues raised on appeal fall

within the scope of the agreement.                             United States v. Blick, 408

F.3d    162,       168-69    (4th       Cir.     2005).          To     determine       whether       an

appeal waiver is knowingly and intelligently entered, the court

examines          the    totality        of     the       circumstances,           including          the

defendant’s         experience,           conduct,            educational        background,         and

familiarity         with     the        agreement’s            terms.        United     States        v.

General, 278 F.3d 389, 400 (4th Cir. 2002).                                  “An appeal waiver

‘is    not    knowingly          or    voluntarily            made    if   the    district       court

fails    to       specifically          question          the    defendant        concerning         the

                                                     2
waiver    provision    of    the     plea       agreement      during     the    Rule     11

colloquy and the record indicates that the defendant did not

otherwise    understand      the     full       significance      of     the    waiver.’”

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

(quoting United States v. Marin, 961 F.2d 493, 496 (4th Cir.

1992)).

            However,    this       court    “will      not     enforce    an    otherwise

valid    appeal   waiver     against        a    defendant       if    the     government

breached the plea agreement containing that waiver.”                                 United

States v. Cohen, 459 F.3d 490, 495 (4th Cir. 2006).                             The party

alleging that the Government breached the plea agreement bears

the burden of showing by a preponderance of the evidence that a

breach occurred.       United States v. Snow, 234 F.3d 187, 189 (4th

Cir. 2000).       Because Peterson did not raise a claim that the

Government breached the plea agreement in the district court,

this    court’s   review     is    for     plain      error.      Puckett       v.   United

States, 556 U.S. 129, 134-36 (2009).                         To prevail under this

standard,    Peterson       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 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).

                                            3
               We have reviewed the record and conclude that there

was no breach, plain or otherwise.                  The plea agreement contained

no promise by the Government to move for a § 5K1.1 reduction

and, at his plea hearing, Peterson acknowledged that there was

no such stipulation or agreement.

               Given that there was no breach of the plea agreement,

the    question       is    whether   Peterson’s      appeal    is    barred     by   the

appellate waiver contained in his plea agreement.                        We find that

it    is.      The    district     court    specifically       questioned      Peterson

about the written appellate waiver and confirmed that Peterson

understood he was waiving his right to appeal by entering the

agreement.            The     terms    of     the    waiver      were       “clear    and

unmistakable.”             See Blick, 408 F.3d at 169.            Because Peterson

raises no claim outside the scope of the waiver, we find that

the waiver is valid and enforceable.                    Therefore, we dismiss the

appeal.       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.



                                                                               DISMISSED




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