                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 14-4097


UNITED STATES OF AMERICA,

                        Plaintiff – Appellee,

          v.

RICHARD JAMAR PERRY, a/k/a Big Mac, a/k/a Mac,

                        Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Roanoke.  Samuel G. Wilson, District
Judge. (7:11-cr-00076-SGW-RSB-1)


Submitted:   September 23, 2014         Decided:   September 25, 2014


Before NIEMEYER and      GREGORY,   Circuit   Judges,   and   HAMILTON,
Senior Circuit Judge.


Affirmed by unpublished per curiam opinion.


Dennis E. Jones, DENNIS E. JONES & ASSOCIATES, P.C., Abingdon,
Virginia, for Appellant. Timothy J. Heaphy, United States
Attorney, Jean B. Hudson, Assistant United States Attorney,
Charlottesville, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Richard Jamar Perry pled guilty pursuant to a plea

agreement to conspiracy to make, utter, and possess counterfeit

securities.     He was sentenced to forty-one months in prison.                         On

appeal,   Perry   claims        that    the        Government      breached     his   plea

agreement by not recommending an acceptance of responsibility

adjustment     under    U.S.     Sentencing           Guidelines       Manual    § 3E1.1

(2011).     Because we conclude that the Government did not breach

the plea agreement, we affirm.

            The plea agreement provided that, if Perry accepted

responsibility for his conduct and complied with the provisions

of the agreement, the Government would recommend a two-level

reduction     under     USSG     § 3E1.1(a),           and,      if    applicable,      an

additional     one-level       reduction          under   USSG     § 3E1.1(b).         The

presentence report (“PSR”) did not recommend an acceptance of

responsibility adjustment, and the Government did not move for

one at sentencing.       Perry did not object.

            Because     Perry     did     not       object    to      the   Government’s

failure to make the disputed recommendation, this court’s review

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

133-34 (2009).         “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

                                              2
plain    error    review,      Perry      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.’”              United States v. McQueen, 108 F.3d 64,

66 & n.4 (4th Cir. 1997) (citing United States v. Fant, 974 F.2d

559, 565 (4th Cir. 1992)).

            We conclude that there was no error, much less plain

error.      The    district         court      ruled    that       Perry      minimized         and

misstated his involvement in the crime of conviction.                                        While

Perry asserts that language in the plea agreement permitting him

to argue whether Guidelines sections should or should not apply

prohibited       the    Government        from      withholding          an   acceptance         of

responsibility          recommendation              based        upon      his       sentencing

testimony and objections, Perry’s argument finds no support in

the record.        The district court ruled that Perry’s testimony

regarding    his       criminal      activity        was     not    credible         and     that,

contrary    to    his    testimony        at   the     sentencing          hearing,        he   was

intimately       involved      in   the     conspiracy        from        start   to    finish.

Thus,    Perry    did    not    receive        an    acceptance          of   responsibility

adjustment,       not   because      he     objected        to     the    PSR,    but      rather

because     his    testimony         regarding         his       participation          in      the

conspiracy was not credible and improperly sought to minimize

his participation while maximizing the participation of others.

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           Because Perry did not accept responsibility for his

conduct as required by the plea agreement, the Government was

not   obligated   to   recommend    an   acceptance   of   responsibility

adjustment.   Accordingly, there was no breach by the Government,

and we, therefore, affirm the district court’s judgment.              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




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