UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                    No. 97-4123
ERNEST MELVIN TUCKER, a/k/a Sonny
Tucker,
Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of West Virginia, at Martinsburg.
Irene M. Keeley, District Judge.
(CR-95-11)

Submitted: January 30, 1998

Decided: November 17, 1998

Before WIDENER, MURNAGHAN, and MICHAEL,
Circuit Judges.

_________________________________________________________________

Vacated and remanded by unpublished per curiam opinion.

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COUNSEL

S. Sean Murphy, Morgantown, West Virginia, for Appellant. William
D. Wilmoth, United States Attorney, Thomas G. Mucklow, Assistant
United States Attorney, Martinsburg, West Virginia, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Ernest Melvin Tucker pled guilty to being a felon in possession of
a firearm, 18 U.S.C.A. § 922(g)(1) (West Supp. 1997) (Count 8);
using or carrying a firearm during a drug trafficking crime, 18
U.S.C.A. § 924(c) (West Supp. 1997) (Count 18); and possession of
crack cocaine with intent to distribute, 21 U.S.C.A.§ 841 (West 1981
& Supp. 1997) (Count 35). The district court imposed a sentence of
120 months on Count 8 (the statutory maximum), a concurrent sen-
tence of 348 months on Count 35, and a consecutive 60-month sen-
tence on Count 18. Tucker appeals this sentence, contending that the
district court erred in cross-referencing to the homicide guideline pur-
suant to U.S. Sentencing Guidelines Manual§ 2K2.1(c)(1)(B) (1995),
and that the government breached the plea agreement by arguing for
application of the cross-reference. For the reasons explained below,
we find that the government breached the plea agreement. We vacate
Tucker's sentence and remand for resentencing.

In November 1995, Tucker was convicted in state court of hiring
two men to rob and murder a rival pawnshop dealer in August 1994.
Tucker supplied the firearm with which the murder was committed.
While Tucker's murder trial was in progress, he was charged with
federal drug and firearms charges alleged to have occurred in the
summer and fall of 1994. Tucker's plea agreement provided that
"[p]ursuant to Sections 6B1.4 and 1B1.3 [Application Note 1] of the
Guidelines, the parties hereby stipulate and agree that the total rele-
vant conduct of the defendant would be 1086.70 grams of cocaine
base, also known as crack."

In calculating Tucker's offense level, the probation officer placed
Count 8 and Count 35 in separate groups. For Count 35 (the drug
offense), the offense level was 36. For Count 8 (the felon in posses-
sion offense), the base offense level of 24 was enhanced by one level

                    2
because Tucker illegally possessed at least four firearms.* See U.S.
Sentencing Guidelines Manual § 2K2.1(b)(1)(A) (1995). More signif-
icantly, the probation officer also recommended cross-referencing to
the homicide guideline because Tucker had used a firearm in another
offense which resulted in a death. See USSG§ 2K2.1(c)(1)(B). The
cross-reference provides, in pertinent part:

         If the defendant used or possessed any firearm . . . in con-
         nection with the commission of another offense, or pos-
         sessed or transferred a firearm . . . with knowledge or intent
         that it would be used or possessed in connection with
         another offense, apply--

         (A) § 2X1.1 (Attempt, Solicitation, or Conspiracy) in
         respect to that other offense, if the resulting offense
         level is greater than that determined above; or

         (B) if death resulted, [apply] the most analogous offense
         guideline from Chapter Two, Part A, Subpart I (Homi-
         cide), if the resulting offense level is greater than that
         determined above.

Application of the cross-reference raised Tucker's offense level to
43. With a multiple count adjustment of one level, see USSG § 3D1.4,
and a three-level adjustment for acceptance of responsibility, see
USSG § 3E1.1, Tucker's final offense level was 41. The probation
officer also recommended that Tucker be sentenced as a career
offender, which placed him in criminal history category VI but did
not change his offense level. The recommended guideline range was
360 months to life.

A few days before his sentencing hearing, Tucker moved pro se to
withdraw his guilty plea on the ground that his plea was not knowing
and voluntary because his previous attorney, Mr. Pool, had assured
him that he would be sentenced to no more than "20 years and some
_________________________________________________________________
*The indictment charged that Tucker possessed a Marlin rifle in the
summer of 1994 (Count 8), a Remington shotgun in the summer of 1994
(Count 14), a .380 Lorcin pistol in November/December of 1994 (Count
49), and a 9 mm pistol in December 1994 (Count 50).

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change." At sentencing, the district court denied the motion, finding
among other things that Tucker acknowledged at the Rule 11 hearing
that his attorney had informed him that the guilty plea exposed him
to as much as forty-five years imprisonment.

In a written sentencing memorandum filed shortly before sentenc-
ing, defense counsel argued that Tucker was not a career offender and
also objected to the application of USSG § 3D1.4 and the cross-
reference to the homicide guideline. He asserted that the cross-
reference should not apply because the government had not shown
that the firearm involved in Count 8 had been used in connection with
the felony murder. At sentencing, however, the government argued
for application of the cross-reference, and the district court decided
that it should be applied. The court also found that Tucker's argument
concerning the multiple count rules was moot and that he was not a
career offender. The court found that the guideline range remained at
360 months to life and imposed a total sentence of 408 months.

We first address Tucker's claim that the government breached the
plea agreement by arguing at sentencing that the cross-reference
should be applied after previously stipulating in the plea agreement
that Tucker's "total relevant conduct" was 1086.7 grams of crack.
When a promise or agreement by the prosecutor is part of the induce-
ment for a guilty plea, that promise must be fulfilled. See Santobello
v. New York, 404 U.S. 257, 262 (1971). Because Tucker did not claim
in the district court that the agreement had been breached, our review
is for plain error. See United States v. Olano , 507 U.S. 725, 732
(1993) (relief available for unpreserved error if error is plain, affects
substantial rights, and seriously affects fairness, integrity, or public
reputation of judicial proceedings). Breach of a plea agreement may
be plain error, see United States v. McQueen, 108 F.3d 64, 66 (4th
Cir. 1997), but the defendant bears the burden of showing that the
error has affected his substantial rights. See United States v. Hastings,
134 F.3d 235, 240 (4th Cir.), cert. denied, ___ U.S. ___, 66 U.S.L.W.
3758 (U.S. May 26, 1998) (No. 97-8732).

The government asserts that the stipulation referred only to Tuck-
er's "drug relevant conduct," and points to a letter from the govern-
ment to Tucker's attorney which stated that the government "would
stipulate that the drug relevant conduct would be 1086.70 grams of

                    4
cocaine base." However, extrinsic or parol evidence is not admissible
to vary the terms of an unambiguous agreement. See Hartman v.
Blankenship, 825 F.2d 26, 29 (4th Cir. 1987).

At the Rule 11 hearing, the government attorney read without qual-
ification the stipulation concerning Tucker's relevant conduct and
represented that the written agreement was the entire agreement
between the parties. Even before that, responding to Tucker's com-
plaints about the quality of representation he had received, Tucker's
attorney told the court that, after the plea agreement was negotiated,
he had given Tucker "his breakdown based on the sentencing guide-
line manual of where he would fall based upon the relevant conduct
in this particular matter." The attorney also stated:

          There was a felony possession gun count also which[the
          government attorney] and I discussed and we believed
          jointly would be merged in the 924(c) count and that would
          not expose Mr. Tucker to any further exposure over and
          above the 5 year minimum mandatory that the Court would
          impose.

The district court also questioned Tucker about his willingness to
enter into the plea agreement, and had the following exchange with
him:

           THE COURT: Look at Paragraph 8. do you see that there
          is a stipulation there that the total relevant conduct of the
          defendant would be 1,086.70 grams of cocaine base also
          known as crack?

          THE DEFENDANT: Yes, ma'am.

           THE COURT: Okay. Now, did you and Mr. Pool discuss
          that number and what that would do to you in terms of your
          guideline level?

          THE DEFENDANT: Yes, ma'am.

           THE COURT: Okay. So that is the amount of relevant
          conduct that you and the Government have agreed to if I
          accept this plea.

                    5
At no time did the government say that the term"total relevant con-
duct" meant only "drug relevant conduct," as it now claims. At no
time was Tucker informed that the murder he had procured with an
illegally possessed firearm might be part of his relevant conduct. The
term "total relevant conduct" is unambiguous, and thus the govern-
ment cannot limit its scope after the fact by the use of parol evidence.
It is clear also that Tucker's plea was induced, at least in part, by the
government's agreement to stipulate to certain relevant conduct. Sub-
sequently, the government argued vigorously at sentencing that the
murder should be included as relevant conduct through application of
the cross-reference, with the result that the offense level was
increased substantially.

We are persuaded that the plea agreement required the government
to take no position on the probation officer's recommendation that the
cross-reference be applied. The district court would have been free to
decide whether the recommendation was correct and to apply the
cross-reference if it saw fit, see USSG§ 6B1.4(d), p.s. (sentencing
court not bound by stipulations), but Tucker would have received the
benefit of his bargain.

For the reasons discussed, we are constrained to vacate the sen-
tence and remand for resentencing. Accordingly, we do not decide
whether the district court's application of USSG§ 2K2.1(c)(1)(B)
was correct. We note that, if on remand the district court determines
that the murder was part of the relevant conduct for the instant
offense, three criminal history points should be deducted from Tuck-
er's criminal history score. See USSG § 4A.12(a)(1), comment. (n.1).
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.

VACATED AND REMANDED

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