                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 06-5088



UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.


GWENDOLYN MARIA LEVI, a/k/a Gwendlyn Levi, a/k/a Bernice
Carter, a/k/a Edna Dawson, a/k/a Gwendlyn Maria Levi, a/k/a
Gwen,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt.      Roger W. Titus, District Judge.
(8:04-cr-00235-RWT)


Submitted:   May 13, 2008                     Decided:   June 4, 2008


Before WILKINSON and NIEMEYER, Circuit Judges, and WILKINS, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


David W. Fischer, Glen Burnie, Maryland, for Appellant. Rod J.
Rosenstein, United States Attorney, Deborah A. Johnston, Assistant
United States Attorney, Greenbelt, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          Gwendolyn Maria Levi appeals from her conviction for

conspiracy to distribute and possess with intent to distribute one

kilogram or more of heroin, in violation of 21 U.S.C. § 846 (2000).

Levi pleaded guilty to the charge pursuant to a plea agreement with

the Government; however, she subsequently breached the agreement by

refusing to testify at the trial of three of her co-defendants, one

of whom was her son.   While Levi concedes she breached the terms of

the plea agreement by refusing to testify, she claims the district

court erred by permitting the Government to be relieved of its

reciprocal obligations under the agreement.1 Levi contends the

Government waived its right to seek relief for her breach by

continuing to operate “as if the plea agreement was status quo

ante,” as the Government obtained a continuance of her sentencing

hearing while representing to her co-defendants that she was still

a cooperating witness.   Finding no error, we affirm.

          In   evaluating   a   claim    alleging   breach   of   a   plea

agreement, the district court’s factual findings are reviewed for

clear error, while legal principles as applied to those facts are

reviewed de novo.   United States v. Snow, 234 F.3d 187, 189 (4th



     1
      After the Government was released from its obligations under
the plea agreement to request certain offense level reductions, the
district court calculated Levi’s offense level at 40, with a
criminal history category of III. Based on a sentencing guidelines
range of 360 months to life imprisonment, the district court
sentenced Levi to 400 months’ incarceration.

                                 - 2 -
Cir. 2000).   Plea agreements are interpreted according to contract

law; each party to the agreement should receive the benefit of its

bargain.    United States v. Chase, 466 F.3d 310, 314 (4th Cir.

2006).     The Government is responsible only for those promises

actually made to the defendant, and its duty in executing those

obligations is no greater than that of “fidelity to the agreement.”

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

United States v. Fentress, 792 F.2d 461, 464 (4th Cir. 1986)).

When a defendant has committed a material breach of the plea

agreement, she forfeits any right to its enforcement and thereby

relieves the Government of its obligation to abide by the terms of

the agreement.    United States v. West, 2 F.3d 66, 69-70 (4th Cir.

1993); see also United States v. Scruggs, 356 F.3d 539, 543 (4th

Cir. 2004).

            While the terms of the plea agreement expressly permitted

the Government to seek a continuance of the sentencing hearing,2

Levi claims the Government was aware of her breach and continued to

operate under the plea agreement, thereby obtaining a benefit by

representing to Levi’s co-defendants that she was still available



     2
      In her plea agreement, Levi agreed that sentencing “may be
delayed until her cooperation has been completed so that at
sentencing the Court will have the benefit of all relevant
information.” At the Fed. R. Crim. P. 11 hearing, the district
court made note of this particular aspect of the plea agreement,
stating that it was “likely - if not almost certain - that th[e]
sentencing date will be moved because of the agreement that you’ve
made to cooperate with the prosecution.”

                                - 3 -
to   testify    at   their   trials.      In   light      of    the   Government’s

representations to Levi’s co-defendants and its almost nine-month

delay before asking to be relieved from its obligations under the

plea agreement, Levi asserts the Government waived its right to

assert any breach on her part.

            In its motion seeking a continuance of the sentencing

date, the Government noted that while Levi had refused to testify

at her son’s trial, it was unclear “what will happen during the

trial of the remaining codefendants.” The continuance provided the

Government with the option to call Levi at future trials while also

giving Levi an opportunity to fulfill her obligations under the

plea agreement.       A continuance for these purposes was expressly

permitted under the terms of the plea agreement, and despite Levi’s

initial refusal to testify, the Government was entitled to enforce

this provision of the agreement in an effort to remedy that

refusal.       See   Scruggs,   356     F.3d   at    545.       Furthermore,      the

Government’s failure to seek to be relieved of its responsibilities

under the plea agreement until after the co-defendants’ trials were

completed      did   not   constitute    waiver      of   the    breach,    as   the

Government received no further performance by Levi during this

period.    Cf. United States v. Vogt, 901 F.2d 100, 102-03 (8th Cir.

1990).

            While    Levi    conceded   she    was   in     breach    of   the   plea

agreement, she contends the Government nevertheless benefitted by


                                      - 4 -
continuing to represent to her co-defendants that she was available

to testify against them.        Levi claims the Government used the

threat of her testimony as a “bargaining chip” against her co-

defendants; however, there is no evidence the Government obtained

any substantive benefit by identifying her as a possible witness.

As the district court noted, despite the possibility of Levi

providing testimony for the Government, none of the co-defendants

entered guilty pleas.     Levi’s assertion that the mere possibility

of    her   testimony   benefitted     the     Government      is    completely

speculative, as her co-defendants proceeded to trial and were found

guilty without any testimony on her part.         See Scruggs, 356 F.3d at

544   (expected   benefits   from   plea     agreement   are   not    based   on

defendant’s     subjective   beliefs       regarding     utility     of   their

cooperation).

            Furthermore, even assuming the Government obtained some

marginal benefit by having Levi listed as a possible witness, the

fact remains that the Government did not obtain the performance for

which it had bargained — namely, Levi’s testimony against her co-

defendants at trial.     Levi thus failed to fulfill a core term of

her plea agreement, as she was required to give testimony against

her co-conspirators at trial, not merely to be identified as a

possible witness. See United States v. Williams, 510 F.3d 416, 427

(3d Cir. 2007) (defendant is not permitted to receive benefits of

the plea agreement while avoiding its costs).             Therefore, Levi’s


                                    - 5 -
claim that the Government waived its right to pursue remedies for

her breach of the plea agreement is meritless.

           Accordingly, we affirm Levi’s conviction and sentence.

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 in the decisional process.



                                                                  AFFIRMED




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