                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-4495


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

SULEMA VILLAGRANA LOPEZ,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:09-cr-00013-MR-14)


Submitted:   November 4, 2010             Decided:   December 10, 2010


Before GREGORY, SHEDD, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Heather Golias, LAW OFFICES       OF HEATHER GOLIAS, New Haven,
Connecticut, for Appellant.      Anne M. Tompkins, United States
Attorney, Richard Lee Edwards,    Assistant United States Attorney,
Asheville, North Carolina, for   Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Sulema       Villagrana       Lopez      appeals       her        conviction

pursuant to a plea agreement and seventy-eight month sentence

for one count of conspiracy to possess with intent to distribute

cocaine    in    violation     of   21   U.S.C.     §§ 845,     841(a)(1)       (2006).

Finding no error, we affirm.

            Lopez’s      principal       argument    on     appeal    is      that   the

Government’s      U.S.    Sentencing      Guidelines      Manual     § 5K1.1      (2009)

and 18 U.S.C. § 3582(c) (2006) motion for a downward departure

did not contain sufficient individualized facts about the level

of assistance Lopez offered for the district court to properly

weigh the degree of assistance given.                 From this premise, Lopez

argues    that   the     Government      committed    misconduct         in    making   a

flawed     motion,       her    trial       counsel       was      constitutionally

ineffective for failing to object to the allegedly defective

motion,    and    the    Government      breached     the    terms       of    the   plea

agreement in making the motion as it did. *                     The Government has

filed a brief responding to Lopez’s claims and also challenging

the court’s jurisdiction over the appeal.




     *
       We note that the district court did grant the Government’s
downward departure motion, reducing Lopez’s offense level by one
level, and then sentencing her at the low end of her revised
advisory Guidelines range.



                                           2
                                       I.     Jurisdiction

               Appeals of sentences are governed by 18 U.S.C. § 3742

(2006).             United       States       v.        Hill,    70     F.3d      321,     323-24

(4th Cir. 1995).             Section 3742(a) confers jurisdiction on this

court to hear appeals of a sentence if it was:                                  (1) imposed in

violation      of     law;       (2)    imposed         as   a   result    of    an    incorrect

application of the Guidelines; (3) greater than the sentence

specified in the applicable guideline range; (4) imposed for an

offense       for    which       there      is     no    sentencing       guideline        and    is

plainly unreasonable.                   18 U.S.C. § 3742(a); Hill, 70 F.3d at

323-24.       To the extent, therefore, that an appeal is a challenge

to     the    amount        of    a     downward        departure,        this    court     lacks

jurisdiction to hear that appeal.                            See Hill, 70 F.3d at 324.

Even     in    light        of    the       Supreme      Court’s       decision       in   United

States v.       Booker,          543     U.S.      220       (2005),    this      court     lacks

authority to review a sentencing court’s decision to depart (and

to   what     degree)        “unless        the    court      failed    to      understand       its

ability to do so.”                United States v. Brewer, 520 F.3d 367, 371

(4th Cir. 2008).

               The Government alleges that this appeal is an attempt

to evade this court’s jurisdictional limitations by couching a

challenge       to      a        downward         departure       in      the     language       of

prosecutorial misconduct and ineffective assistance of counsel.

We do not agree.                 Though Lopez’s ultimate goal may be to gain

                                                   3
greater leniency from a future downward departure motion, the

court does have jurisdiction over the claims that she raises —

namely, that the sentence was imposed in violation of the law

because it was the result of prosecutorial misconduct and the

breach of a plea agreement.



                         II.    Prosecutorial Misconduct

           Lopez claims that the Government committed reversible

misconduct by failing to provide “individualized facts” in its

USSG   § 5K1.1    and     18    U.S.C.   § 3582(c)   motion.      Her   claim    is

essentially that had the Government proffered a more detailed

downward adjustment motion, the district court may have been

more willing to depart below the motion’s recommendation.                       To

succeed on a claim of prosecutorial misconduct, the defendant

must    prove     that    the     prosecution’s      conduct   was,     in   fact,

improper, and that she was deprived of a fair trial because of

the prejudicial conduct.           United States v. Allen, 491 F.3d 178,

191 (4th Cir. 2007).           Because Lopez did not raise this claim in

the    district     court,      this     court   reviews    for   plain      error,

affirming unless an error was made, the error was plain, and the

error affected Lopez’s substantial rights.                 See United States v.

Alerre, 430 F.3d 681, 689 (4th Cir. 2005).

           Lopez cites to cases from our sister circuits that

have reviewed a district court’s ruling on a downward departure

                                           4
motion    to    ensure      the    court        offered       an   adequate     statement      of

reasons    explaining        the       degree     of     assistance         provided.        See,

e.g.,    United    States         v.    Johnson,         33    F.3d    8    (5th Cir. 1994);

United States v. King, 53 F.3d 589 (3d Cir. 1995).                                   The merits

of those decisions aside, they do not apply to this case.                                    Even

if those cases represented the law of this circuit, they impose

a burden on the district court, not the prosecutor.                                  We cannot,

therefore, find that any plain error was committed in the manner

in which the Government filed its downward departure motion.



                  III. Ineffective Assistance of Counsel

               Lopez   next       argues        that    counsel       was    ineffective      for

failing to object to the supposedly defective downward departure

motion.        Claims of ineffective assistance of counsel generally

are not cognizable on direct appeal.                          United States v. King, 119

F.3d 290, 295 (4th Cir. 1997).                         Rather, to allow for adequate

development of the record, a defendant generally must bring her

claims in a 28 U.S.C.A. § 2255 (West Supp. 2010) motion.                                     Id.;

United    States       v.    Hoyle,        33    F.3d     415,      418     (4th Cir. 1994).

However, ineffective assistance claims are cognizable on direct

appeal    if     the     record         conclusively            establishes      ineffective

assistance.        United         States    v.       Richardson,       195    F.3d    192,    198

(4th Cir. 1999); King, 119 F.3d at 295.



                                                 5
           We have reviewed the record, and because it does not

clearly appear that the downward departure motion was inadequate

or   otherwise    defective,      we   decline    to   hold    that   ineffective

assistance of counsel appears conclusively on the face of the

record.     Accordingly, this claim is not cognizable on direct

review.



                        IV.   Breach of Plea Agreement

           Lopez finally claims that the Government breached the

plea agreement.      Her claim is based on her allegation that the

Government was required to present more individualized facts to

the sentencing court in its motion for a downward departure.

           When the defendant raises an issue concerning a breach

of the plea agreement for the first time on appeal, the breach

is reviewed under a plain error standard.               See United States v.

McQueen, 108 F.3d 64, 65-66 (4th Cir. 1997).                  In addition to the

requirements for plain error discussed above, the Supreme Court

has recognized that where “the effect of an alleged error is

. . . uncertain . . . a defendant cannot meet [her] burden of

showing    that   the     error   actually       affected     [her]   substantial

rights.”   Jones v. United States, 527 U.S. 373, 394-95 (1999).

           Plea agreements are grounded in contract law, and both

parties should receive the benefit of their bargain.                       United

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

                                         6
constitutional and supervisory concerns, the government is held

to     a    greater       degree      of    responsibility            for    imprecisions        or

ambiguities in plea agreements.                        United States v. Harvey, 791

F.2d       294,       300-01       (4th Cir. 1986).             Where       an    agreement      is

ambiguous in its terms, the terms must be construed against the

government.            Id. at 303.          However, in enforcing agreements, the

government         is    held      only    to   those     promises      it       actually     made.

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

                 Here, the plea agreement stated that if Lopez offered

assistance,           “[t]he       United       States,    in     its       sole      discretion,

[would] determine whether the assistance has been substantial.”

The agreement continued, stating that “[u]pon a determination

that       the    defendant         has    rendered     substantial           assistance,       the

government may make a motion pursuant to [USSG] § 5K1.1[.]”                                     The

Government argues that the agreement does not, by its terms,

require them to file a downward departure motion, and that in

any event, the Government did file such a motion.

                 Again,       without      reaching     the     dubious       claim      that    the

Government’s            downward      departure       motion      was       insufficient,        we

conclude         that    because      the    Government        was     not,      in     any   event,

required         to    file    a    motion,      no   breach     of    the       plea    agreement

occurred.

                 Accordingly, we affirm the judgment of the district

court.           We dispense with oral argument because the facts and

                                                  7
legal    contentions   are   adequately   presented    in   the    materials

before   the   court   and   argument   would   not   aid   the   decisional

process.

                                                                    AFFIRMED




                                    8
