                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 09-5228


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

DWAYNE MITCHELL LITTLEJOHN, a/k/a Manson,

                Defendant - Appellant.



                              No. 10-4013


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

DANIEL LEE REED, a/k/a Heavy D,

                Defendant - Appellant.



Appeals from the United States District Court for the Western
District of North Carolina, at Bryson City.          Martin K.
Reidinger, District Judge.   (2:08-cr-00036-MR-DLH-2; 2:08-cr-
00036-MR-3)


Submitted:   March 10, 2011                 Decided:   April 11, 2011


Before GREGORY, SHEDD, and AGEE, Circuit Judges.
Dismissed by unpublished per curiam opinion.


Claire J. Rauscher, Executive Director, Matthew R. Segal,
Fredilyn Sison, Assistant Federal Defenders, Asheville, North
Carolina; Eric A. Bach, LAW OFFICES OF ERIC A. BACH, Charlotte,
North Carolina, for Appellants. Anne M. Tompkins, United States
Attorney, Amy E. Ray, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

               Dwayne Mitchell Littlejohn and Daniel Lee Reed contest

the restitution amount imposed pursuant to the Mandatory Victims

Restitution Act as part of their sentences.                            Littlejohn pleaded

guilty to second degree murder and aiding and abetting second

degree    murder,      in    violation      of          18   U.S.C.    §§ 2,    1111,       1153

(2006).        Reed    pleaded     guilty          to    voluntary      manslaughter         and

aiding and abetting voluntary manslaughter, in violation of 18

U.S.C. §§ 2, 1112, 1153 (2006).                          Littlejohn’s plea agreement

provided that the Government would recommend a sentence at the

low end of the Sentencing Guidelines range.                             Littlejohn argues

that     the    Government       breached          the       plea     agreement      when       it

discussed its position on the facts of the murder at sentencing

and that the breach relieves him of the waiver of his right to

appeal    his    sentence.         Both    defendants               contest   the    district

court’s     calculation       of   future           lost      wages     as    part    of     the

restitution portion of their sentences.

               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).                 Where a party raised the issue of

whether the plea agreement was breached in the district court,

this court reviews the district court’s factual findings for

clear error and its principles of contract interpretation de

                                               3
novo.     United States v. Bowe, 257 F.3d 336, 342 (4th Cir. 2001)

(citing Snow, 234 F.3d at 189).                  Where, however, a party failed

to raise the issue of whether the plea agreement was breached in

the   district     court,       this    court      reviews    the       issue   for   plain

error.     United States v. McQueen, 108 F.3d 64, 65-66 & n.1 (4th

Cir. 1997) (citing United States v. Fant, 974 F.2d 559, 565 (4th

Cir. 1992)).        Thus, the appellant must not only show that the

plea agreement was breached, but also that “the breach was ‘so

obvious and substantial that failure to notice and correct it

affect[ed] the fairness, integrity or public reputation of the

judicial proceedings.’”               McQueen, 108 F.3d at 66 & n.4 (quoting

Fant, 974 F.2d at 565).

            “[W]hen a plea rests in any significant degree on a

promise or agreement of the prosecutor, so that it can be said

to be part of the inducement or consideration, such promise must

be    fulfilled.”        Santobello         v.   New     York,   404     U.S.   257,     262

(1971).    “It is well-established that the interpretation of plea

agreements    is    rooted       in    contract      law,    and     that   ‘each     party

should receive the benefit of its bargain.’”                            United States v.

Peglera,    33    F.3d     412,       413   (4th    Cir.     1994)      (quoting      United

States v. Ringling, 988 F.2d 504, 506 (4th Cir. 1993)).                                  “A

central tenet of contract law is that no party is obligated to

provide    more     than    is        specified     in     the     agreement     itself.”

Peglera,    33    F.3d     at    413.        “Accordingly,         in    enforcing     plea

                                             4
agreements, the government is held only to those promises that

it actually made,” and “the government’s duty in carrying out

its obligations under a plea agreement is no greater than that

of ‘fidelity to the agreement.’”                        Id. (quoting United States v.

Fentress, 792 F.2d 461, 464 (4th Cir. 1986)); see also United

States v. Benchimol, 471 U.S. 453, 456 (1985) (holding “it was

error for the Court of Appeals to imply as a matter of law a

term    which    the          parties      themselves         did    not     agree      upon”       by

requiring recommendation to be made “enthusiastically”).

              Littlejohn has failed to establish that the Government

breached      its        plea       agreement.            Under       the     agreement,           the

Government was obligated to recommend a sentence at the low end

of    the    Sentencing         Guidelines          range.          We    conclude          that   the

Government satisfied its obligation to recommend a sentence at

the low end of the Guidelines range.                                The Government clearly

stated twice that it was recommending a sentence at the low end

of the range.         Although the Government explained its position on

why    the   Government            extended    a       plea   to    Littlejohn         for    second

degree       murder,          it     did      not        follow       with        a     sentencing

recommendation           of     anything      other       than      the     low       end    of    the

Guidelines range.                  Moreover, Littlejohn cannot show that the

district      court       would      have     imposed         a    lower    sentence         if    the

Government had not revealed that it believed that the murder was

premeditated        by    at       least   one     of    the      three     co-defendants          but

                                                   5
that, because the evidence against any of the Defendants was

weak, it agreed to Littlejohn’s guilty plea to second degree

murder    with    the    concession       that       it    would    also     recommend   a

sentence at the low end of the Guidelines range.

              Despite the waiver of appellate rights in their plea

agreements,       Littlejohn       and    Reed       challenge       the     restitution

portion   of     their    sentence       on       appeal.       Although     restitution

allows a victim to recover losses that may otherwise be remedied

through   a    civil     action,    it    remains         an   aspect   of    a   criminal

defendant’s sentence.           See United States v. Cohen, 459 F.3d 490,

496 (4th Cir. 2006).            Therefore, a defendant who knowingly and

explicitly agrees to a waiver of all rights to appeal his or her

sentence has generally waived the right to appeal restitution.

Id. at 1143, 1147 (4th Cir. 1995).

              However,     an      otherwise          valid        waiver     does    not

necessarily bar appellate review of every sentence.                           See United

States v. Broughton-Jones, 71 F.3d 1143, 1147 (4th Cir. 1995).

     A defendant who waives his right to appeal does not
     subject himself to being sentenced entirely at the
     whim of the district court. For example, a defendant
     could not be said to have waived his right to
     appellate review of a sentence imposed in excess of
     the maximum penalty provided by statute or based on a
     constitutionally impermissible factor such as race.

Id. (emphasis omitted; internal quotation marks and alteration

omitted).        Federal courts have no inherent authority to order

restitution, but must rely on a statutory source.                             See Cohen,

                                              6
459 F.3d at 498.         Thus, because a restitution order exceeding

the authority statutorily granted a court “is no less illegal

than   a   sentence    of     imprisonment     that    exceeds      the   statutory

maximum, appeals challenging the legality of restitution orders

are similarly outside the scope of a defendant’s otherwise valid

appeal waiver.”       Id. (internal quotation marks omitted).

            Appellants contend that the district court’s order of

restitution for lost future wages is based upon speculation and

devoid of factual support.          Therefore, they argue that the court

erred in awarding this type of restitution.                  As this issue does

not concern the authority of the court to impose restitution,

and Appellants acknowledge the existence of such authority by

not challenging the future per capita distributions, the appeal

of this issue is within the scope of Appellants’ waivers of

appeal.    Appellants challenge the calculation and amount of lost

future income imposed; they do not, however, contend that their

appeal     waivers     were     anything       other       than    knowingly      and

voluntarily entered.          Further, it is apparent from the record

that the district court fully questioned each appellant at his

respective Fed. R. Crim. P. 11 hearing.

            Because    Appellants’       waivers      of   appeal    were     validly

entered    and   enforceable,      and   the    Government        did   not   breach

Littlejohn’s plea agreement, we conclude that the restitution

issue they seek to raise on appeal is barred by the appeal

                                         7
waivers   contained   in   Appellants’   respective   plea     agreements.

Accordingly,   we   dismiss   the   appeals.   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




                                     8
