                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 14-4683


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

GREGORY D. ANDERSON,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Max O. Cogburn, Jr.,
District Judge. (3:10-cr-00260-MOC-DSC-1)


Submitted:   September 30, 2015           Decided:   October 21, 2015


Before SHEDD, DUNCAN, and KEENAN, Circuit Judges.


Affirmed in part; dismissed in part by unpublished per curiam
opinion.


Ross Hall Richardson, Executive Director, Joshua B. Carpenter,
FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville,
North Carolina, for Appellant.    Jill Westmoreland Rose, Acting
United States Attorney, Anthony J. Enright, Assistant United
States Attorney, Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

      Gregory D. Anderson pled guilty, pursuant to a conditional

plea agreement, to conspiracy to defraud the United States, in

violation of 18 U.S.C. § 371 (2012); bank fraud, in violation of

18    U.S.C.    § 1344     (2012);      making     false      statements     to    the

Department of Housing and Urban Development, in violation of 18

U.S.C. § 1010 (2012); money laundering to conceal the proceeds

of    illegal    activities,       in    violation       of    18   U.S.C.      § 1956

(a)(1)(B)(i)     (2012);    and    forcibly      resisting     arrest     inflicting

injury to persons assisting the United States, in violation of

18 U.S.C. § 111 (2012).            On appeal, Anderson argues that the

district   court   erred     in    interpreting      a     preindictment     proffer

agreement, 1 in finding that the Government did not commit an

anticipatory     breach     of    the    proffer    agreement,      and    in     using

information obtained from the proffer agreement at sentencing.

The   Government    asserts       that    Anderson’s       waiver    of    appellate

rights in the plea agreement bars some of his claims.                      We affirm

in part and dismiss in part.

      First, we consider Anderson’s argument that the Government

committed an anticipatory breach of the proffer agreement by




      1See United States v. Lopez, 219 F.3d 343, 345 n.1 (4th
Cir. 2000) (discussing proffer agreements generally).



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reading him his Miranda 2 rights and presenting him an advice—of—

rights      form    prior    to    his     second    proffer       session.          Anderson

argues      that    this    amounts        to   an   anticipatory       breach        of   the

proffer agreement because the Government’s actions contradicted

its central obligations under the proffer agreement — that his

statements would not be used against him in court.

       Whether      a     proffer     agreement       has     been    breached        is   “a

question of law that we review de novo.”                           Lopez, 219 F.3d at

346.         “[A]       proffer     agreement        operates       like    a       contract;

accordingly, we examine its express terms to determine whether

[a party] is in breach.”                   United States v. Gillion, 704 F.3d

284, 292 (4th Cir. 2012).                 We rely on principles of contract law

in interpreting criminal agreements but “hold[] the Government

to a greater degree of responsibility than the defendant . . .

for imprecisions or ambiguities.”                    United States v. Harvey, 791

F.2d       294,    300    (4th     Cir.    1986).          Under     contract       law,    an

anticipatory        breach        occurs    when     “one     party    to       a    contract

renounces         its    future      contractual           obligations,       in      essence

promising ahead of time not to perform when performance comes

due.”        Homeland       Training       Ctr.,     LLC    v.     Summit   Point       Auto.

Research Ctr., 594 F.3d 285, 292 (4th Cir. 2010).




       2   Miranda v. Arizona, 384 U.S. 436 (1966).



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      We    conclude        that     the    Government         did      not    commit     an

anticipatory breach of the proffer agreement.                           The record shows

that the Government’s agents answered Anderson’s questions about

the effects of the Miranda warnings on the proffer agreement,

that Anderson previously communicated a desire to be represented

by    counsel,       that    the    agents       were      concerned      when    Anderson

appeared at the proffer meeting without counsel, and that the

agents’ motivations in advising Anderson of his rights were to

ensure     he    understood         his    right      to    have     counsel      present.

Moreover, the terms of the proffer agreement expressly provided

circumstances        in     which    Anderson’s         statements       could    be     used

against him in court, and, thus, the agents’ decision to provide

a Miranda warning and an advice—of—rights form did not reject

the    Government’s          central       obligations         under       the     proffer

agreement.

      Next,     we    consider      the    Government’s        contention         that    the

remainder       of   Anderson’s      appeal      is     barred     by    the     waiver   of

appellate rights in his plea agreement.                     Anderson argues that we

should consider the merits of his remaining arguments because

the district court expanded the scope of the appeal waiver at

his Fed. R. Crim. P. 11 hearing, and his argument that the

Government breached the proffer agreement cannot be waived.                               We

review a waiver of appellate rights de novo.                            United States v.

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

                                             4
      In his plea agreement, Anderson agreed to waive all rights

to   appeal        his    conviction         and       sentence        except        for    his

supplemental        motion     to     dismiss          and    claims     of     ineffective

assistance of counsel and prosecutorial misconduct.                             Our review

of the record on appeal leads us to conclude that the district

court did not expand the appeal waiver in attempting to explain

the waiver’s terms to Anderson.                   See United States v. Wood, 378

F.3d 342, 349 (4th Cir. 2004).

      The    only    argument       in     Anderson’s         supplemental       motion      to

dismiss     is     his    argument        that     the       Government       committed      an

anticipatory       breach    of     the    proffer       agreement.          Thus,    to    the

extent      Anderson      argues      that       the     district      court     erred       in

interpreting        the   proffer        agreement       and      allowing     the    use    of

Anderson’s proffer statements at sentencing, those claims fall

within the scope of the waiver. 3

      Although       we   have      held    that       “[a]    defendant’s       waiver      of

appellate        rights     cannot         foreclose         an    argument      that       the

government breached its obligations under [a] plea agreement,”

United States v. Dawson, 587 F.3d 640, 644 n.4 (4th Cir. 2009),

we   have    not    extended      this     rule    to    proffer       agreements.          The

      3To the extent Anderson seeks to recast this claim as an
allegation of prosecutorial misconduct, he did not adequately
preserve the claim because he did not pursue this argument until
he filed his reply brief. See A Helping Hand, LLC v. Baltimore
Cty., 515 F.3d 356, 369 (4th Cir. 2008).



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Government did not commit an anticipatory breach of the proffer

agreement, and Anderson’s argument that the Government breached

the     agreement    by    using      before     the    grand      jury       information

obtained    during       the   proffer      sessions     is    a   nonjurisdictional

defect    waived    by    Anderson’s     guilty        plea.       United      States   v.

Moussaoui,    591    F.3d      263,   279    (4th      Cir.    2010).         Thus,   this

portion of the appeal is foreclosed by the waiver provision in

the plea agreement.

      Accordingly, we affirm in part and dismiss the appeal in

part.     We deny Anderson’s motions 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 this     court      and   argument       would    not    aid     the    decisional

process.

                                                                   AFFIRMED IN PART;
                                                                   DISMISSED IN PART




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