                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 13-4539


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

DESMOND FLETCHER,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, Senior District Judge.
(8:11-cr-00429-RWT-1)


Submitted:   July 29, 2014                 Decided:   September 4, 2014


Before DUNCAN, KEENAN, and DIAZ, Circuit Judges.


Dismissed in part; affirmed in part by unpublished per curiam
opinion.


Francis A. Pommett, III, NATHANSON & POMMETT, P.C., Baltimore,
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Unpublished opinions are not binding precedent in this circuit.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:

                Desmond      Fletcher          appeals         from     his     conviction         and

72-month        sentence      imposed          pursuant          to    his    guilty        plea    to

possession       of    a   firearm        by     a       convicted      felon.         On    appeal,

Fletcher raises two claims: (1) whether the Government breached

his plea agreement by de facto arguing for an upward departure

and (2) whether his sentence was reasonable.                                  In response, the

Government has filed a motion to dismiss based upon Fletcher’s

waiver     of    his     right      to    appeal          in   his     plea    agreement.           By

previous order, we denied the motion to dismiss Fletcher’s claim

that the Government breached the plea agreement, finding that

such   a   claim       was    not    barred          by    Fletcher’s         waiver.         As    to

Fletcher’s sentencing claims, we deferred action on the motion

to    dismiss     until      the     merits          of    the    breach       claim    had        been

decided.        Briefing is now complete, and we grant the remaining

portion     of     the     motion         to    dismiss,          dismiss       the    appeal        of

Fletcher’s sentence, and affirm Fletcher’s conviction.

                Because Fletcher did not argue in district court that

the    Government          breached            its       obligations          under     the        plea

agreement,        this     claim         is    reviewed          for    plain     error.            “To

establish        plain     error,        [Fletcher]            must    show     that    an     error

occurred, that the error was plain, and that the error affected

his substantial rights.”                      United States v. Muhammad, 478 F.3d

247, 249 (4th Cir. 2007).                       Even if Fletcher satisfies these

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requirements,        “correction        of    the     error      remains    within     [the

Court’s] discretion, which [the Court] should not exercise . . .

unless the error seriously affect[s] the fairness, integrity or

public   reputation         of    judicial          proceedings.”         Id.   (internal

quotation marks and citation omitted).

              Plea agreements are grounded in contract law, and both

parties should receive the benefit of their bargain.                                  United

States   v.    Dawson,      587   F.3d       640,    645    (4th    Cir.    2009).       The

Government breaches a plea agreement when a promise it made to

induce the plea goes unfulfilled.                     See Santobello v. New York,

404   U.S.    257,    262    (1971).           Because      of     “constitutional       and

supervisory     concerns,”        the    Government         is     held    to   a   greater

degree of responsibility than the defendant for imprecision or

ambiguities in plea agreements.                     United States v. Garcia, 956

F.2d 41, 44 (4th Cir. 1992).                 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, “[w]hile the government must be held to the promises it

made, it will not be bound to those it did not make.”                                United

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

              Fletcher      admits      that       the   Government        recommended    a

sentence within the calculated Guidelines as promised in the

plea agreement.        However, Fletcher argues that the Government’s

extensive     argument      on    the    18        U.S.C.   § 3553     (2012)       factors,

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including details of Fletcher’s criminal history and the search

warrant   application,      amounted        to   mere        “lip   service    to    its

obligation” to recommend a sentence within the Guidelines range.

These arguments, according to Fletcher, constituted an implicit

request   for    an    upward     departure      and     a    breach   of     the   plea

agreement.      The court, faced with a Guidelines range of 46-57

months, imposed a variant sentence of 72 months in prison.

           Even        assuming      that        the         Government’s      conduct

constituted a breach of the plea agreement, Fletcher cannot show

either that any breach affected his substantial rights or that

we should exercise our discretion to correct any error.                               In

sentencing Fletcher, the district court appeared to rely most

heavily   on    the     circumstances       of    Fletcher’s        crime     and    his

criminal background, details of which were in the presentence

report and not objected to by Fletcher.                       Fletcher thus cannot

show that, absent the Government’s argument, the district court

would have imposed a lower sentence.                     Moreover, even if this

showing   were        possible,     Fletcher       was        sentenced     within     a

Guidelines     range    clearly    anticipated         by     his   plea    agreement.

Therefore, we conclude that any error does not seriously call




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into question the fairness or integrity of judicial proceedings. 1

See Muhammad, 478 F.3d at 249.

            Having    determined     that     any   breach    of    the     plea

agreement did not constitute reversible error, we consider the

application    of    the   appeal    waiver   therein.       We    review   the

validity of an appeal waiver de novo.           United States v. Manigan,

592 F.3d 621, 626 (4th Cir. 2010).            Generally, we will enforce

an appellate waiver contained in a plea agreement “if the waiver

is valid and the issue sought to be appealed falls within the

scope of the waiver.”       United States v. Cohen, 459 F.3d 490, 494

(4th Cir. 2006).       Fletcher does not dispute that he knowingly

and   voluntarily     waived   his    appellate     rights   regarding       his

sentence.     However, he questions whether the plea agreement (and

particularly the wording of the waiver) was valid, given that

      1
       Fletcher makes certain additional related, and meritless,
claims. First, he asserts that the Government’s invitation for
the district court to consider facts in the search warrant
application that Fletcher did not admit violated Apprendi v. New
Jersey, 530 U.S. 466 (2000).      However, Apprendi is entirely
inapplicable to sentencing and Guidelines rulings, absent some
allegation (absent here) that Fletcher was sentenced above the
maximum statutorily available sentence for the crime to which he
pled guilty.   See United States v. Promise, 255 F.3d 150, 157
n.5 (4th Cir. 2001).    Fletcher also argues that permitting the
Government to use the search warrant application against him at
sentencing violated his substantial rights because he gave up
his right to challenge the legality of the search warrant
pursuant to the plea agreement.      This argument is similarly
without merit, as the plea agreement made no mention of the
search warrant or the information therein. Moreover, the court
stated that it did not rely on the search warrant application.



                                       5
there was a mutual mistake in predicting the base offense level,

and whether the issues sought to be appealed fall within the

scope of the waiver.

               Fletcher        argues     that          his   challenges     to      the

reasonableness of his sentence either fall outside the scope of

the waiver or rendered his waiver involuntary because there was

a mutual mistake and ineffective assistance in the negotiation

of the plea agreement.             According to Fletcher, had the parties

correctly predicted the Guidelines range, he would have been

permitted to appeal from his current sentence, as it exceeded

the Guidelines range. 2           We find that Fletcher’s claim is without

merit.       While the parties were mistaken in their calculation of

the potential Guidelines range, Fletcher agreed that the court

was not bound by any stipulations in the plea agreement and

explicitly waived his right to appeal “any issues that relate to

the establishment of the advisory guidelines range,” as well as

“the       calculation    of    any     term       of   imprisonment.”     “A     mutual

mistake       concerning        the      proper         Guidelines   range      is   an

       2
        In the plea agreement, the Government predicted that
Fletcher’s adjusted offense level would be 25, resulting in a
Guidelines range of 70-87 months, and Fletcher agreed to waive
an appeal of any sentence that did not exceed that Guidelines
range.    However, due to a legal issue not foreseen by the
parties, Fletcher’s actual adjusted offense level was 21,
resulting in a Guidelines range of 46-57 months.     Thus, while
his sentence exceeded his Guidelines range, it did not exceed 87
months.



                                               6
insufficient basis to void a plea agreement.”                     United States v.

Riggi, 649 F.3d 143, 149 (2d Cir. 2011) (upholding appeal waiver

based   on        incorrect     assumptions       regarding        the     Guidelines

calculations); see also United States v. Garland, 122 F.2d 118,

122 (4th Cir. 1941) (holding that mutual mistake in a prophecy

or opinion is not grounds for recession of a contract).

             As    Fletcher     waived    his     right    to     appeal    from    any

sentencing issues so long as his sentence did not exceed the

Guidelines range calculated with an adjusted offense level of 25

(and it indisputably did not), his claim that his sentence was

unreasonable       falls    strictly     within    the    scope    of    the     waiver.

Thus, we grant the Government’s motion to dismiss Fletcher’s

sentencing        claims.      We    affirm     Fletcher’s       conviction.         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.



                                                                 DISMISSED IN PART;
                                                                   AFFIRMED IN PART




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