                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 11-4474


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

CHAD EMORY JONES,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Elizabeth City.   Terrence W.
Boyle, District Judge. (5:10-cr-00219-BO-2)


Submitted:   July 12, 2012                  Decided:    August 17, 2012


Before MOTZ and     FLOYD,   Circuit   Judges,   and   HAMILTON,   Senior
Circuit Judge.


Affirmed in part; dismissed in part by unpublished per curiam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


J. Michael McGuinness, THE MCGUINNESS LAW FIRM, Elizabethtown,
North Carolina, for Appellant.       Jennifer P. May-Parker,
Assistant United States Attorney, Raleigh, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Chad       Emory        Jones     appeals       the    150-month            sentence

imposed following his guilty plea to aiding and abetting the

distribution        of    more        than    five     grams    of    crack       cocaine,       in

violation of 21 U.S.C. § 841(a)(1) (2006) and 18 U.S.C. § 2

(2006),      and    being    a        felon    in     possession      of    a     firearm,        in

violation of 18 U.S.C. §§ 922(g)(1), 924 (2006).                                     On appeal,

Jones’      first    attorney          filed    a     brief    pursuant         to   Anders       v.

California,        386    U.S.    738        (1967),    stating      that    there        were    no

meritorious grounds for appeal, but asking this court to review

the underlying proceedings for error.                          Although advised of his

right to do so, Jones declined to file a pro se supplemental

brief.      The Government did not file a response.

              During our initial Anders review, we discerned three

nonfrivolous issues and directed the parties to submit merits

briefs on those points.                    We further appointed new counsel to

represent Jones.            In accordance with our directive, Jones’ new

attorney submitted a comprehensive brief addressing the validity

and    enforceability            of     the     appeal     waiver      and       the      various

sentencing         issues    identified          in     our    briefing         order.           The

Government         now   moves        to     dismiss     the    appeal       as      to     Jones’

sentence, arguing that it is precluded by the appeal waiver in

Jones’ plea agreement.                Jones counters that the waiver provision

is    not   enforceable       because          the     Government     breached         the   plea

                                                 2
agreement at sentencing and, alternatively, that his acceptance

of the appeal waiver was coerced.

            It    is    well     settled    that      an    appeal    waiver   cannot

preclude consideration of a claim that the Government breached

the plea agreement.         United States v. Dawson, 587 F.3d 640, 644

n.4 (4th Cir. 2009).            Thus, we reject the Government’s motion to

dismiss as to Jones’ claim of a purported breach of the plea

agreement at sentencing.             However, for the reasons discussed

herein, we hold that Jones’ breach claim fails, on the merits,

because   he     cannot    demonstrate         that   the    breach    affected    his

substantial rights.         And because the appeal waiver is otherwise

valid, we grant the motion to dismiss the appeal as to all

remaining      issues     relevant    to   Jones’      sentence.        Finally,    we

affirm Jones’ convictions.

            Jones first argues the Government breached the plea

agreement by failing to fulfill its express promise to advise

the sentencing court of the “full extent” of his cooperation and

that this breach renders the waiver inoperative.                      Because Jones

did not raise this breach claim in the district court, appellate

review of this issue is for plain error.                        Puckett v. United

States, 556 U.S. 129, 133-34 (2009); Dawson, 587 F.3d at 645.

To prevail, Jones must show that an error occurred, the error

was plain, the error affected his substantial rights and, if not

corrected,       the    error    would     seriously        affect    the   fairness,

                                           3
integrity, or public reputation of judicial proceedings.                          United

States v. Olano, 507 U.S. 725, 732-37 (1993).

             Plea agreements are grounded in contract law, and both

parties are entitled to the benefits of their bargain.                            United

States v. Bowe, 257 F.3d 336, 345 (4th Cir. 2001).                            Where an

agreement is ambiguous in its terms, the terms must be construed

against the Government.               United States v. Harvey, 791 F.2d 294,

303   (4th   Cir.       1986).        However,     in   enforcing     agreements,     the

Government    is    held       only    to   those    promises    it    actually     made.

Dawson, 587 F.3d at 645.

             The Government concedes that such an explicit promise

was made here, which indeed went unfulfilled.                       Thus, there is no

question     as    to    the     breach,     and    the   breach      is   plain.      As

discussed earlier, Jones’ waiver of his right to appeal does not

preclude appellate review of this issue.                        However, as to the

merits of this claim, the Government persuasively argues that

this breach did not affect Jones’ substantial rights because

there is no “nonspeculative basis in the record to conclude that

the district court would have imposed a lower sentence but for

the [breach].”          United States v. Knight, 606 F.3d 171, 180 (4th

Cir. 2010).        We agree with the Government and therefore affirm

as to this aspect of Jones’ sentence.

             The Supreme Court has clarified that, under the plain

error standard, when the rights acquired by the defendant under

                                             4
the plea agreement relate to sentencing, “the ‘outcome’ he must

show to have been affected is his sentence.”                        Puckett, 556 U.S.

at 142 n.4.        This Jones does not endeavor to do.                   Jones relies

instead on the “fundamental” nature of the error that was the

Government’s       breach   to    satisfy       the   third   prong    of    the   plain

error inquiry.        But this, standing alone, is insufficient, and

we discern no nonspeculative basis in the record on which we

could   conclude     that   the    district       court     would    have    imposed   a

lower sentence had the Government fulfilled its obligation.                         See

Knight, 606 F.3d at 180.           Thus, while appellate consideration of

this claim is not foreclosed by the appeal waiver, we hold that

the   claim    nonetheless       fails   under        the   plain    error   standard.

Accordingly, the motion to dismiss is denied as to this claim,

and we instead reject it on the merits.

              We   next   consider    Jones’       alternative       contention     that

the waiver is invalid because he was coerced into accepting it,

and thus that it does not bar appellate review of his claims

pertaining to the particular sentence the court imposed.                            This

court reviews the validity of an appellate waiver de novo, and

will enforce the waiver if it is valid and the issue appealed is

within the scope thereof.            United States v. Blick, 408 F.3d 162,

168 (4th Cir. 2005).         An appeal waiver is valid if the defendant

knowingly and intelligently agreed to it.                   Id. at 169.



                                            5
              To     determine          whether       a        waiver     is     knowing       and

intelligent, we examine the background, experience, and conduct

of the defendant.             United States v. Broughton-Jones, 71 F.3d

1143, 1146 (4th Cir. 1995); United States v. Davis, 954 F.2d

182, 186 (4th Cir. 1992).                     Ultimately, however, the issue is

“evaluated by reference to the totality of the circumstances.”

United States v. General, 278 F.3d 389, 400 (4th Cir. 2002).

Generally,     if     a    district          court    fully      questions        a    defendant

regarding     the     waiver      of    appellate         rights    during       the    Fed.    R.

Crim.    P.   11     colloquy,         the    waiver      is     valid    and     enforceable.

United States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005).

              Our review of the record leads us to conclude that

Jones knowingly and voluntarily waived his right to appeal his

sentence.          Although      Jones       argues    that      his     acceptance      of    the

waiver   resulted         from    the    inherently            coercive    plea       bargaining

process,      this    contention             runs    contrary       to     our     established

precedent.         We have previously rejected an “unequal bargaining

position”      contention         with       regard       to    appellate        waivers,      see

United States v. Cohen, 459 F.3d 490, 495 (4th Cir. 2006), and

have upheld appeal waivers with respect to sentences that were

not determined at the time of the plea.                            See United States v.

Brown, 232 F.3d 399, 404-06 (4th Cir. 2000) (upholding waiver of

right to appeal “whatever sentence is imposed”).                                  Finally, we

note that all of the particular sentencing issues raised in this

                                                6
appeal     fall        within    the      ambit     of     the     appeal          waiver.

Specifically,      the    waiver       precludes    an    appeal      of    any    within-

Guidelines sentence the court imposed, on any ground.                             There is

no   dispute     that    the    sentence    Jones       received      was   within     his

Guidelines range.         For these reasons, we grant the Government’s

motion to dismiss, in part, and dismiss the appeal of Jones’

sentence in part.

            Jones’ appeal waiver, however, does not preclude an

appeal of his convictions.              Because Jones did not challenge the

validity of his guilty plea in the district court, we review

only for plain error.           United States v. Martinez, 277 F.3d 517,

524–27 (4th Cir. 2002).            Our review of the record reveals that

the district court substantially complied with the dictates of

Rule 11 and committed no error warranting correction on plain

error review.      We therefore affirm this portion of the judgment.

            In accordance with Anders, we have reviewed the entire

record    in     the     case   and     have    found     no     other      potentially

meritorious issues for appeal that fall outside the scope of the

appellate waiver.          We therefore dismiss in part and affirm in

part.     We require that counsel inform Jones, in writing, of the

right to petition the Supreme Court of the United States for

further review.         If Jones requests that a petition be filed, but

counsel believes that such a petition would be frivolous, then

counsel    may    move    in    this    court     for    leave   to    withdraw       from

                                           7
representation.        Counsel’s motion must state that a copy thereof

was served on Jones.          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.

                                                          AFFIRMED IN PART;
                                                          DISMISSED IN PART




                                        8
