                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-4974


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

HAROLD GONZALEZ ROQUE,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Max O. Cogburn, Jr.,
District Judge. (3:09-cr-00177-MOC-2)


Submitted:   September 28, 2012           Decided:   November 26, 2012


Before NIEMEYER, DIAZ, and FLOYD, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Denzil H. Forrester, Charlotte, North Carolina, for Appellant.
Anne M. Tompkins, United States Attorney, Melissa L. Rikard,
Assistant United States Attorney, Charlotte, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Harold Gonzalez Roque pled guilty pursuant to a plea

agreement to one count of conspiracy to defraud the Government

by filing false claims, 18 U.S.C. § 286 (2006) (Count One), and

conspiracy to defraud the United States, 18 U.S.C. § 371                            (2006)

(Count Two).          The Government moved for a downward departure

under U.S. Sentencing Guidelines Manual (“USSG”) § 5K1.1 (2010)

based on Roque’s substantial assistance, and Roque ultimately

received    a   72-month      sentence.           On   appeal,       Roque    seeks     to

challenge       the     sentencing         court’s       calculation          regarding

restitution,       alleging         the        Government      breached       the     plea

agreement by referring to a money judgment entered into by the

parties where none existed.                The Government concedes that the

statement    was      made   in   error,       but   argues    the    error    did     not

constitute a breach or prejudice Roque.                  The Government further

contends that because Roque agreed to waive his right to appeal

his sentence, this appeal should be dismissed.                        Roque counters

that the Government’s alleged breach voids his appellate waiver.

Because we conclude that the Government did not breach the plea

agreement and that the appeal waiver should be enforced, we

dismiss the appeal.

            Roque      entered    into     a    plea   agreement       in    which     the

parties    agreed     pursuant     to    Fed.     R.   Crim.    P.    11(c)(1)(B)       to

jointly recommend to the court: (1) the amount of loss known to

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or reasonably foreseeable to Roque was more than seven million

dollars, but less than twenty million dollars, corresponding to

a twenty-level enhancement under USSG § 2B1.1(b)(1)(K); (2) the

“loss”   under       USSG   § 2B1.1(b)        may    be   different     from,    greater

than, or less than “restitution” under 18 U.S.C. § 3556 (2006);

and (3) Roque’s adjusted offense level is thirty-four.                                 With

respect to restitution, the plea agreement provided:

         The defendant agrees to . . . pay full
    restitution, regardless of the resulting loss amount,
    to all victims directly or indirectly harmed by the
    defendant’s “relevant conduct.” . . . The defendant
    understands that such restitution will be included in
    the Court’s Order of Judgment and an unanticipated
    amount of a restitution order will not serve as
    grounds to withdraw the defendant’s guilty plea.

Roque agreed to waive all rights to notice of forfeiture under

Fed. R. Crim. P. 32.2.             Additionally, he agreed to waive his

right    (1)    to    contest     the    conviction          except    for    claims    of

ineffective assistance of counsel or prosecutorial misconduct,

and (2) to appeal whatever sentence was imposed with the two

exceptions set forth in (1).

               At    sentencing,        the       district     court     affirmed      the

magistrate judge’s findings that Roque’s plea was knowingly and

voluntarily made, and that he understood the charges and the

consequences of his plea.           The parties stipulated to the factual

basis as set forth in the presentence report (“PSR”).                            Neither

party    objected      to   the   PSR.        When     the    district       court   asked


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whether there was any criminal forfeiture in this case to be

considered as part of the judgment, the Assistant United States

Attorney responded: “Your Honor, we did I think execute a money

judgment.    We’d ask the Court to just orally pronounce that.                      I

think it’s been executed by the parties and it’s been filed.”

Defense counsel stated he had no objections to that motion.                       The

court further ordered Roque to make restitution to the Internal

Revenue Service in the amount of $12,342,117, as calculated in

the PSR, noting that Roque was jointly and severally liable for

the total amount of restitution with his co-conspirators.

            Based      on    the     Assistant     United       States      Attorney’s

statement,       the   court       noted   there     was    a     consent    judgment

agreement    between        the     parties    for     the      total    amount     of

restitution in this case.              The court recognized the judgment,

ordered that it become a part of the record, stated that it

would be signed by the court, and made the judgment a part of

the sentence.       The defense again did not object.

            On     appeal,     Roque       maintains       that    the      Government

breached the plea agreement at sentencing by proclaiming the

existence    of    a   consent      judgment   that    did      not   exist.      This

statement, according to Roque, violated the plea agreement as it

altered a material term of the plea document, i.e., restitution,

and therefore voids his waiver of his right to appeal.                       He seeks

to argue on appeal that his sentence in unreasonable because the

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district court abused its discretion in ordering a restitution

amount     of     $12.3   million       dollars,         based    on     a    non-existent

agreement.

            Because       Roque       did   not    object        to    the    Government’s

statement as a breach of the plea agreement, this court’s review

is for plain error.             Puckett v. United States, 556 U.S. 129,

133–36 (2009); United States v. McQueen, 108 F.3d 64, 65–66 & n.

1 (4th Cir. 1997) (citing United States v. Fant, 974 F.2d 559,

565 (4th Cir. 1992)).            “It is settled that a defendant alleging

the Government’s breach of a plea agreement bears the burden of

establishing that breach by a preponderance of the evidence.”

United States v. Snow, 234 F.3d 187, 189 (4th Cir. 2000).                                Under

plain    error     review,     Roque    must      show    not    only       that   the   plea

agreement       was    breached,      but   also       that     “the    breach     was    ‘so

obvious and substantial that failure to notice and correct it

affect[ed] the fairness, integrity or public reputation of the

judicial proceedings.’”            McQueen, 108 F.3d at 66 & n. 4 (quoting

Fant, 974 F.2d at 565).

            The Government concedes that there is no record of a

money    judgment      agreement       signed     by     the    parties;      however,      it

counters        that   Roque    fails       to    demonstrate          the    Government’s

mistaken assertion was contrary to any promise the Government

made in the plea agreement or that Roque was prejudiced by the

statement.         When   a    plea    agreement       rests     on    an    agreement     or

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promise      that       can     be    said       to    be   part       of   the    inducement        or

consideration, the promise must be fulfilled.                                   United States v.

Dawson, 587 F.3d 640, 645 (4th Cir. 2009).                                  On the other hand,

no party is obligated to do more than what is specified in the

plea agreement itself.                 Id.

              Under Fed. R. Crim. P. 32(b)(1)(A), which pertains to

forfeitures,            “[i]f        the    Government            seeks     a     personal       money

judgment, the court must determine the amount of money that the

defendant will be ordered to pay.”                                The Government correctly

notes   that    it        made       no    promises         or    obligations       in     the      plea

agreement      with       respect           to    whether         it    would      seek    a     money

judgment.       Therefore, Roque cannot establish the Government’s

statement, albeit mistaken, constituted a breach of the plea

agreement.

              Assuming          arguendo          that      the        Government’s        statement

constituted         a    breach,           that       statement,        contrary      to       Roque’s

assertion, did not affect the ultimate order of restitution and,

therefore, no prejudice resulted.                            In the PSR, the probation

officer      specifically                 calculated         a     restitution        amount          of

$12,342,117, the same amount ordered by the court.                                    See Fed. R.

Crim.   P.    32(c)(1)(B)             (directing          probation         officer   to       conduct

investigation           and     submit       report       regarding         restitution        to    the

court).      When given an opportunity at sentencing, Roque lodged

no   objections           to     the        probation            officer’s        calculation        of

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restitution in the PSR.                Moreover, Roque does not assert that

there has been any forfeiture of his assets in reliance on the

non-existent money judgment.                   We conclude there was no error,

much less plain error, because the Government did not breach the

plea agreement.

               The     Government           seeks     enforcement      of     the       plea

agreement’s appeal waiver.                  A criminal defendant may waive the

right    to    appeal    if    that     waiver      is    knowing   and     intelligent.

United States v. Poindexter, 492 F.3d 263, 270 (4th Cir. 2007).

Generally, if the district court fully questions a defendant

regarding      the    waiver     of    his     right     to   appeal   during       a   plea

colloquy performed in accordance with Rule 11, the waiver is

both valid and enforceable.                  United States v. Johnson, 410 F.3d

137, 151 (4th Cir. 2005).                   Whether a defendant validly waived

his right to appeal is a question of law this court reviews de

novo.     United States v. Blick, 408 F.3d 162, 168 (4th Cir.

2005).    Where the Government seeks to enforce an appeal waiver

and there is no substantiated claim that the Government breached

its   obligations        under      the      plea   agreement,      this     court      will

enforce       the    waiver    if     the    record      establishes   that     (1)     the

defendant knowingly and intelligently agreed to waive the right

to appeal, and (2) the issue being appealed is within the scope

of the waiver.         Id. at 168 & n. 5.



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                 Roque waived his right to appeal his sentence except

based       on    claims   of    ineffective         assistance       of    counsel    and

prosecutorial misconduct.                   This portion of the plea agreement

was reviewed at the Rule 11 hearing and Roque acknowledged that

he agreed to the provision.                   On appeal, Roque argues that the

appeal waiver is not enforceable because the Government breached

the plea agreement.            Because the Government did not breach the

plea agreement and Roque does not raise an issue outside the

scope of the agreement, the appeal waiver will be enforced.

                 Accordingly, we dismiss the appeal.                  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.


                                                                               DISMISSED




       
       He does         not      argue       that   his   plea   was   not    knowing    or
voluntary.


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