                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 13-4109


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JERRY DEMARIO GUESS,

                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-00145-MOC-DCK-1)


Submitted:   March 31, 2014                 Decided:   April 10, 2014


Before WILKINSON, NIEMEYER, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Robert C. Carpenter, ADAMS, HENDON, CARSON, CROW & SAENGER,
P.A., Asheville, North Carolina, for Appellant.          Anne M.
Tompkins, United States Attorney, William M. Miller, Assistant
United States Attorney, Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Jerry      Demario     Guess   pleaded      guilty    pursuant        to    a

written plea agreement to wire fraud, 18 U.S.C. § 1343 (2012),

and two counts of filing false tax returns, 26 U.S.C. § 7206(a)

(2012).     The district court sentenced Guess to fifty-one months’

imprisonment     for    the   wire    fraud    conviction       and     a   concurrent

thirty-six months for the false tax return convictions.                            Prior

to   sentencing,      the   Government     objected     to     Guess’       presentence

investigation      report,    asserting        that   the      report       incorrectly

grouped    the   wire    fraud   conviction      with    the    false       tax   return

convictions and that the multiple count adjustment pursuant to

U.S.     Sentencing     Guidelines     Manual     (USSG)       § 3D1.4        therefore

applied.      On appeal, Guess argues that the Government’s non-

grouping objection constituted a breach of the plea agreement.

The Government responds that no such breach occurred and that

Guess’    appeal    should    be     dismissed    based      on   the       waiver     of

appellate rights included in the plea agreement.

            “[A] party’s waiver of the right to seek appellate

review is not enforceable where the opposing party breaches a

plea agreement.”        United States v. Bowe, 257 F.3d 336 (4th Cir.

2001).     Therefore, we must address Guess’ allegation of breach,

the sole issue he raises on appeal, and decline the Government’s

invitation to enforce the appeal waiver.



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              A 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 Guess did not properly

preserve this claim in the district court, our review is for

plain error. ∗        Puckett v. United States, 556 U.S. 129, 134-36

(2009) (holding plain error rule applies to claim of breach of

plea agreement).

              To     establish    plain         error     on        appeal     Guess    must

establish that: (1) there was error; (2) the error was plain;

and (3) the error affected his substantial rights.                                 Fed. R.

Crim. P. 52(b); United States v. Henderson, 133 S. Ct. 1121,

1126       (2013).      Even     if   Guess          establishes        each      of   these

prerequisites, we exercise our discretion to correct the error

only if we are convinced that the error “seriously affects the

fairness,          integrity     or   public            reputation           of    judicial

proceedings.”          Henderson,     133       S.    Ct.      at    1126-27      (internal

quotation marks and alteration omitted).


       ∗
       We reject Guess’ contention that he properly preserved
this issue for appeal in light of counsel’s failure to raise a
claim of breach in the district court, United States v. Taylor,
659 F.3d 339, 348 (4th Cir. 2011) (“[T]he defendant is deemed
bound by the acts of his lawyer-agent.”), and because Guess’ own
assertions of a breach were made only in the context of his
request for a continuance of the sentencing hearing to retain
substitute counsel.



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             We    have   reviewed       the   record      and   conclude    that    the

Government      did     not    plainly   breach      the   plea   agreement.         The

language Guess relies on in his claim of breach does not clearly

support his interpretation.              In any case, the district court, in

imposing sentence, suggested that it would have reached the same

result regardless of the applicable Guidelines range; therefore,

Guess   is    unable          to   establish    an      adverse    impact     on     his

substantial rights.            Accordingly, we affirm the judgment below.

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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