                              PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 15-4252


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

BRANDON TATE,

                Defendant – Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.   Robert J. Conrad,
Jr., District Judge. (3:13-cr-00296-RJC-1)


Argued:   October 28, 2016                 Decided:      January 11, 2017


Before GREGORY,   Chief   Judge,   and    KEENAN   and    FLOYD,   Circuit
Judges.


Affirmed by published opinion.    Judge Floyd wrote the opinion,
in which Chief Judge Gregory and Judge Keenan joined.


ARGUED: Roderick Morris Wright, Jr., WRIGHT LAW FIRM OF
CHARLOTTE, PLLC, Charlotte, North Carolina, for Appellant.
Anthony Joseph Enright, OFFICE OF THE UNITED STATES ATTORNEY,
Charlotte, North Carolina, for Appellee.         ON BRIEF: Jill
Westmoreland Rose, United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
FLOYD, Circuit Judge:

     Appellant Brandon Tate signed a plea agreement in which the

government agreed to seek a sentence at the lowest end of the

“applicable     guideline   range.”         At   sentencing,     the   government

recommended a sentence at the lowest end of the guideline range

found by the district court.          Tate now argues that in doing so,

the government breached the plea agreement.                Tate contends that

the government was actually obligated to recommend a sentence at

the lowest end of the correct guideline range, which, in his

view, was lower than the range found by the court.                 We disagree,

and hold that in this case, the phrase “applicable guideline

range” only obligated the government to recommend a sentence at

the lowest end of the guideline range found by the district

court.    Because the government fulfilled this obligation, it did

not breach the plea agreement.         Accordingly, we affirm.



                                       I.

     In a written plea agreement, Tate agreed to plead guilty to

possession with intent to distribute and distribution of cocaine

base,    in   violation   of    21   U.S.C.      §   841(a)(1)   and   (b)(1)(C)

(2012).       The plea agreement stated that the government would

“seek a sentence at the lowest end of and either party may seek

a departure or variance from the ‘applicable guideline range.’

(U.S.S.G. § 5C1.1).”           J.A. 74.       Additionally, Tate agreed to

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waive    all   “rights    to   contest   the    conviction   except   for:   (1)

claims of ineffective assistance of counsel or (2) prosecutorial

misconduct.”      J.A. 77.       Tate also agreed to waive “all rights

conferred by 18 U.S.C. § 3742 or otherwise to appeal whatever

sentence is imposed with the two exceptions set forth above.”

Id.

      A magistrate judge then held a hearing pursuant to Federal

Rule of Criminal Procedure 11.               At the hearing, Tate consented

to plead guilty, and the magistrate judge established Tate’s

competence to plead guilty and his understanding of the terms of

his plea agreement.

      A presentence report (PSR) and, later, a revised PSR were

then prepared.      The revised PSR calculated a base offense level

of 24 under the Sentencing Guidelines.                  Tate then received a

three-level     reduction      for   acceptance   of    responsibility,    which

resulted in a total offense level of 21.                The revised PSR then

assigned Tate seven criminal history points and calculated his

criminal history as Category IV.             This criminal history category

and the total offense level of 21 resulted in a guideline range

of 57 to 71 months’ imprisonment.

        Tate   objected   to   the    revised   PSR’s    assignment   of   three

criminal history points for his four 2004 North Carolina state

convictions for common law robbery, robbery with a dangerous

weapon, and attempted robbery with a dangerous weapon.                       Tate

                                         3
claimed that those convictions should not have been the basis

for additional points under the Guidelines because they were

part of a consolidated sentence.         He argued that his guideline

range should have actually been 46 to 57 months’ imprisonment.

      At sentencing in March 2015, the district court adopted the

magistrate judge’s finding that Tate’s guilty plea was knowingly

and voluntarily made, and found there was a factual basis to

support the entry of the plea.           The district court overruled

Tate’s objections to the revised PSR’s assignment of criminal

history points, and adopted the revised PSR’s calculation of the

guideline    range   of   57   to   71   months’     imprisonment.     The

government then recommended a sentence of 57 months, and stated

that it was doing so in compliance with the plea agreement.             The

government also stated that Tate had been making good use of his

time in prison, and that this boded well for his future.                The

district court then sentenced Tate to 57 months’ imprisonment.

      Tate noted a timely appeal of his sentence, claiming that

the   government’s   sentencing     recommendation    breached   the   plea

agreement.      The government then moved to dismiss the appeal,

arguing that the appeal waiver in Tate’s plea agreement bars

Tate’s claim.




                                     4
                                       II.

      The   first   issue,    raised    in   the   government’s     motion    to

dismiss, is whether Tate’s appeal waiver bars this claim.                     In

the   appeal   waiver,    Tate   waived      all   rights   to    appeal     his

conviction and his sentence, except for claims of ineffective

assistance of counsel and prosecutorial misconduct.

      Tate’s appeal waiver is generally valid. 1               However, “[a]

defendant’s    waiver    of   appellate      rights   cannot     foreclose    an

argument that the government breached its obligations under the

plea agreement.”     United States v. Dawson, 587 F.3d 640, 644 n.4

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

495 (4th Cir. 2006)).         Here, Tate argues that the government

breached the plea agreement.           This Court may review that claim;

it is not barred by the appeal waiver.




      1A criminal defendant may waive the right to appeal if that
waiver is knowing and voluntary.     United States v. Davis, 689
F.3d 349, 354 (4th Cir. 2012) (per curiam).     “Generally, if a
district court questions a defendant regarding the waiver of
appellate rights during the Rule 11 colloquy and the record
indicates that the defendant understood the full significance of
the waiver, the waiver is valid.” United States v. Thornsbury,
670 F.3d 532, 537 (4th Cir. 2012). Here, Tate confirmed at his
Rule 11 hearing that he agreed with the appeal waiver and
understood that he was waiving his right to appeal his
conviction and sentence. His waiver is therefore valid.



                                        5
                                             III.

       We now turn to the main issue in this case:                         whether or not

the    government       breached      the     plea     agreement.           In    the    plea

agreement,      the     government      agreed       to   seek    a   sentence      at    the

lowest end of the “applicable guideline range.”                            The government

contends       that     this    provision          obligated     it   to     recommend      a

sentence at the lowest end of the guideline range found by the

district       court.         Tate    argues       that   the    government        was    not

permitted to rely on the range found by the district court, but

was instead obligated to recommend an even lower sentence, based

on what he alleges is the correct guideline range.

       Because Tate did not raise this issue below, we review his

claim for plain error.                 Fed. R. Crim. P. 52(b); Puckett v.

United States, 556 U.S. 129, 135 (2009).                         Plain error analysis

has four prongs: (1) there must be an error; (2) the error must

be    plain;    (3)     the    appellant’s         “substantial       rights”      must    be

affected by the error; and (4) the error must seriously affect

“the    fairness,        integrity      or     public     reputation         of    judicial

proceedings.”         Puckett, 556 U.S. at 135 (internal quotation mark

omitted).       To prevail, Tate would need to prove all four prongs;

however, Tate’s appeal fails on the first prong, error.

       Tate     alleges        that    the     government        breached         the    plea

agreement.       Plea agreements are grounded in contract law, and

both parties to a plea agreement should receive the benefit of

                                               6
their    bargain.         Dawson,    587     F.3d    at    645.      The     government

breaches a plea agreement when a promise it made to induce the

plea goes unfulfilled.             Santobello v. New York, 404 U.S. 257,

262 (1971).        However, “[a] central tenet of contract law is that

no party is obligated to provide more than is specified in the

agreement itself.            Accordingly, in enforcing plea agreements,

the government is held only to those promises that it actually

made to the defendant.”             United States v. Peglera, 33 F.3d 412,

413 (4th Cir. 1994).

      In determining what promises the government made, we read

“a   plea    agreement’s       plain     language     in    its     ordinary    sense.”

United     States    v.   Jordan,      509   F.3d   191,     195    (4th   Cir.      2007)

(internal quotation marks omitted).                  Moreover, any ambiguities

in a plea agreement are construed against the government as its

drafter.     United States v. Barefoot, 754 F.3d 226, 246 (4th Cir.

2014).      Whether a plea agreement is ambiguous on its face is a

question of law to be resolved by the courts, Jordan, 509 F.3d

at   195,    and     we     will   not     create    an     ambiguity      where     none

legitimately exists.

      In    determining       whether    the     government       breached     the    plea

agreement in this case, we will assume arguendo that the lower

guideline range proposed by Tate of 46 to 57 months was the

correct     guideline       range,     and   that    the     range    found     by    the

district     court    was    incorrect.          Notably,    Tate    has   waived     his

                                             7
right to appeal the court’s guideline range determination.                         The

only question here is what the government was required to do

under the plea agreement.           The plea agreement stated that the

government      would   seek   a   sentence        at   the   lowest    end   of   the

“applicable     guideline      range.”        We    hold   that   the   “applicable

guideline range” means the guideline range found by the district

court,    and     that,     therefore,        the       government’s     sentencing

recommendation complied with the plea agreement. 2



                                         A.

     First,      the    natural    reading         of   the   phrase    “applicable

guideline range” is the guideline range found by the district

court, because it is clearly the district court that is assigned

the task of determining the “applicable guideline range.”                          The

Supreme Court has consistently held that sentencing in federal

district courts is to proceed as follows:                     First, the district

court    must    determine      “the     applicable        [g]uidelines       range.”

Molina-Martinez v. United States, 136 S. Ct. 1338, 1342 (2016);

see also Peugh v. United States, 133 S. Ct. 2072, 2080 (2013);




     2 This holding should not be read to preclude claims of bad
faith or prosecutorial misconduct.    No such claims have been
made in this case.



                                         8
Gall v. United States, 552 U.S. 38, 49 (2007). 3                             Next, once the

district court determines this range, the government and the

defendant present their arguments regarding what the sentence

should be.        Peugh, 133 S. Ct. at 2080.                         The court considers

these arguments, along with the factors set forth in 18 U.S.C. §

3553(a).      Id.         Then,    the     court       determines           the    defendant’s

sentence,    and    states        its    reasons       for      this    sentence          on    the

record.    Id.

      In the process described above, it is plainly the task of

the   district      court     to     determine         the       “applicable            guideline

range,” and it is this range that forms the basis of the rest of

the   sentencing     hearing.            See       Gall,   552       U.S.    at    49     (“[T]he

Guidelines       should     be     the     starting        point       and        the    initial

benchmark.”)        Thus,     in    the    context         of    a    federal       sentencing

proceeding,      where      the    district          court      first       determines          the

“applicable      guideline        range”       and   the     government           then    has   an

opportunity to make a sentencing recommendation, it is clear

that a promise by the government to recommend a sentence at the

lowest end of the “applicable guideline range” is a promise to




      3In all three cited cases, the Court has used the specific
phrase “applicable [g]uidelines range” to describe the range
determined by the district court.    Molina-Martinez, 136 S. Ct.
at 1342; Peugh, 133 S. Ct. at 2080; Gall, 552 U.S. at 49.



                                               9
recommend a sentence at the lowest end of the range found by the

court.

       Additionally, the Guidelines themselves state “[t]he court

shall determine the kinds of sentence and the guideline range as

set forth in the guidelines,” and instruct that the court does

so     in    accordance     with       U.S.S.G.       1B1.2,       which     is    entitled

“Applicable Guidelines.”               U.S.S.G. 1B1.1(a)(1).               The Guidelines

as a whole are written as instructions to the court on how to

determine the applicable guideline range.                          It is clear that it

is the district court, and no other entity, that traditionally

determines the “applicable guideline range.”

       Based on the above, we hold that the phrase “applicable

guideline       range,”     as        used    in      the    plea     agreement          here,

unambiguously         refers     to    the     guideline       range       found    by    the

district court.



                                              B.

       Second, although this Court has not dealt with this exact

issue       before,   it   has   previously          considered      similar       arguments

made    by    criminal     defendants         claiming      that    the    imposition       of

incorrect sentences rendered their appeal waivers invalid.                                 See

United      States    v.   Brown,      232    F.3d    399,    404    (4th    Cir.    2000);

United      States    v.   Bowden,      975    F.2d    1080,       1081    n.1    (4th   Cir.



                                              10
1992).         These      cases     support          the     above     interpretation     of

“applicable guideline range.”

       In Bowden, this Court was presented with an appeal waiver

that read, “By this agreement Defendant waives any appeal and

the right to exercise any post-conviction rights . . . if the

sentence imposed herein is within the [Sentencing Guidelines.]”

975 F.2d at 1081 n.1 (emphasis added).                          In that case, we held

that the waiver preserved the defendant’s right to challenge his

sentence as being outside of the Guidelines, because the waiver

was    expressly       conditioned        on    the        sentence    being    within   the

Guidelines.         Id.

       In   contrast,      in     Brown,       the    defendant       had   signed   a   plea

agreement with a waiver of all rights to appeal his sentence;

however,       a    different     part    of    the    plea     agreement      stated    that

“[t]he Defendant understands . . . [t]hat sentencing will be in

accordance with the United States Sentencing Guidelines.”                                232

F.3d at 404 (alterations in original).                         There, this Court held

that     the       defendant    had      waived       all     rights     to    contest    his

sentence, and that the other statement that his sentence would

be “in accordance with” the Guidelines did not qualify or change

this unconditional waiver.               Id.     We explained:

       A common sense reading of [the relevant provision]
       indicates that its purpose is merely to inform Brown
       that his sentence will be calculated using the
       Sentencing Guidelines. The paragraph does not, in any
       way, condition the waiver of Brown's right to appeal

                                               11
       on a proper application of the Guidelines, as the plea
       in Bowden did.

Id.

       Although Bowden and Brown address the validity of appeal

waivers,      rather      than    the   government-breach           argument      presented

here, they are still instructive.                      Read together, these cases

indicate that a provision in a plea agreement that is explicitly

conditioned on a correct sentence under the Guidelines will be

honored,      but     a    mere     reference        to     the     Guidelines     is     not

sufficient to create such a condition.                       The provision at issue

here falls into the latter category.                        Moreover, Brown counsels

that       common     sense      should    be       used    when     interpreting        such

provisions.         Here, when the process and structure of sentencing

are taken into account, common sense dictates that “applicable

guideline      range”      signifies      the       range    found    by   the     district

court.



                                               C.

       Third and finally, Tate’s proposed interpretation of the

plea agreement is logically untenable.                       Tate contends that the

term “applicable guideline range” should be read to mean the

correct guideline range--which in this case we assume to be 46

to    57    months.       Tate    is    thus    arguing      that    the   only    way    the

government could have complied with the plea agreement would


                                               12
have    been    through      a    recommendation            of       a       46    month    sentence.

Under Tate’s view, any other recommendation violates the plea

agreement.           However,         although    it   was           entirely            possible      for

Tate’s attorney to calculate the guideline range and propose

that    the    specific       figure      of     46    months            be       included       in    the

agreement      when    it     was      made,     the   agreement                  does    not    say    46

months.       No specific number of months is included.                                   Rather, the

agreement uses only the indeterminate phrase, “the lowest end of

. . . the ‘applicable guideline range.’”

       The fact that the two parties did not specify a number of

months in the agreement, even though it was completely possible

for them to do so, and instead merely agreed to the lowest end

of a yet-to-be-determined “range,” manifestly implies that they

anticipated that a third party (i.e., the district court) was

going to determine that range.                    If the two parties had actually

agreed to 46 months, there is no conceivable reason why they

would forego memorializing this agreement, and instead opt for

the    indeterminate         “the      lowest    end    of       .       .    .    the    ‘applicable

guideline range’” language contained in the plea agreement.                                            It

is well established that the government is not “obligated to

provide       more    than       is    specified       in    the             agreement          itself.”

Peglera, 33 F.3d at 413.                   Tate’s interpretation of the plea

agreement would violate this rule.



                                                13
                                          IV.

     At    bottom,        Tate’s   true   grievance     is    with    the   district

court’s        application    of    the    Guidelines        in   determining    the

guideline range.          However, Tate has waived the right to present

this issue on appeal.              He cannot now convert this claim of

sentencing error into a claim of breach by the government when

the government has complied fully with the terms of the plea

agreement.

     As used in the plea agreement here, the phrase “applicable

guideline        range”     unambiguously       means   the       guideline     range

determined by the district court.                The government complied with

the plea agreement when it made its sentencing recommendation

based     on    the   district     court’s      guideline     range   calculation.

Therefore, an error did not occur, and the plain error standard

has not been met.          Accordingly, the judgment below is

                                                                            AFFIRMED.




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