                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 08-4869


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

THESSALONIAS ANRE HOLMES,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Aiken. Margaret B. Seymour, District Judge.
(1:07-cr-00317-MBS-1)


Submitted:   May 5, 2010                      Decided:   May 28, 2010


Before MOTZ, AGEE, and DAVIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


John C. Neiman, Jr., BRADLEY ARANT BOULT CUMMINGS LLP,
Birmingham, Alabama, for Appellant.        John David Rowell,
Assistant United States Attorney, Columbia, South Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Thessalonias      A.     Holmes    appeals     his    conviction        and

sentence     of   121    months,      imposed    after      he    pled    guilty      to

possession with intent to distribute cocaine, in violation of 21

U.S.C. § 841(a)(1) (2006).            Appellate counsel has filed a brief

pursuant     to    Anders     v.    California,       386    U.S.    738        (1967),

questioning       whether     the     United    States      breached          its   plea

agreement in failing to move to reduce Holmes’s sentence under

Rule 35(b) of the Federal Rules of Criminal Procedure or 18

U.S.C. § 3553(e) (2006), but concluding there are no meritorious

grounds for appeal.           Holmes filed a pro se supplemental brief,

raising the same issue.             The Government elected not to file a

brief.      We previously placed this case in abeyance pending the

outcome of United States v. Peake, No. 08-5132.                     As our mandate

has   now    issued     in   Peake,    this    case   has    been    removed        from

abeyance, and is ripe for review.

             When a claim of breach of a plea agreement has been

preserved, we review the district court’s factual findings for

clear    error    and   its    “application      of   principles         of    contract

interpretation de novo.”            United States v. Bowe, 257 F.3d 336,

342 (4th Cir. 2001).           However, because Holmes did not claim in

the district court that the Government had breached the plea

agreement, appellate review in this case is for plain error.

Puckett v. United States, 129 S. Ct. 1423, 1428 (2009).

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                  Plea agreements are grounded in contract law, and both

parties should receive the benefit of their bargain.                              Bowe, 257

F.3d at 345.             The government breaches the plea agreement when a

promise       it      made       to     induce       the    plea       goes    unfulfilled.

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       for     imprecision    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     300,     303.        However,         “[w]hile    the

[g]overnment 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,    464-65       (4th   Cir.    1986).       After      reviewing   the

record, we find that the Government’s failure to move for a

downward departure or reduction in sentence was not in breach of

the plea agreement.              Accordingly, this issue is without merit.

                  In reviewing the remainder of the record, we note that

Holmes’s          sentence      appears       procedurally      unreasonable,       as    the

district court failed to provide any explanation for imposing

the sentence it did.                   We recently held, in United States v.

Carter, 564 F.3d 325 (4th Cir. 2009), that a district court must

conduct an “individualized assessment” of the particular facts

of every sentence, on the record, whether the court imposes a

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sentence above, below, or within the guidelines range.                             Id. at

330.     Here,     the      district    court          summarized    its     reasons    for

Holmes’s sentence as follows:

       Mr. Holmes, having calculated and considered the
       advisory   sentencing   guidelines  and  having  also
       considered the relevant statutory sentencing factors
       that are contained in Title 18, United States Code
       Section 3553(a), it is the judgment of the court that
       the Defendant, Thessalonias Anre Holmes, is hereby
       committed to the custody of the Bureau of Prisons to
       be imprisoned for a term of 121 months.

       The findings of fact of the presentence report are
       adopted as the reasons for the sentence and they are
       incorporated by reference.

              Except for noting that its sentence was based on the

findings of fact in the presentence report, the district court

failed   to    provide      any   reasons        why    a   guidelines      sentence    was

appropriate for Holmes or why it chose to sentence him at the

low end of the advisory guideline range.                      Therefore, it is clear

that   the     district     court     failed      to     provide    an     individualized

assessment as required by Carter.

              However, Holmes did not object to the adequacy of the

district court’s explanation in the district court.                               Where a

defendant      does   not    object     to   a     district       court’s     failure   to

explain an imposed sentence, or otherwise preserve the issue for

review    by    requesting        a   sentence          shorter     than    the   one   he

received, our review is for plain error.                       See United States v.




                                             4
Lynn, 592 F.3d 572, 578-79 (4th Cir. 2010).                               Under plain error

review,

       [A]n appellate court may correct an error not brought
       to the attention of the trial court if (1) there is an
       error (2) that is plain and (3) that affects
       substantial rights. If all three of these conditions
       are met, an appellate court may then exercise its
       discretion to notice a forfeited error, but only if
       (4)   the  error   seriously   affects  the  fairness,
       integrity,   or    public    reputation  of   judicial
       proceedings.

United    States       v.     Carr,       303       F.3d    539,    543    (4th   Cir.     2002)

(internal quotation marks, citations, and alterations omitted).

In the sentencing context, an error affects substantial rights

if the defendant can show that the sentence imposed “was longer

than    that    to     which       he    would      otherwise      be     subject.”       United

States     v.       Washington,          404    F.3d       834,    849     (4th   Cir.     2005)

(internal       quotation           marks       and        citation      omitted).         After

reviewing the proceedings, we conclude any error the district

court    may        have     committed         in    failing       to    adequately      explain

Holmes’s sentence did not affect Holmes’s substantial rights,

and is therefore not cognizable on appeal.

               We have reviewed the entire record in accordance with

Anders    and       have     not        identified         any    meritorious     issues      for

appeal.        Accordingly, we affirm the judgment of the district

court.         This        court    requires         counsel       to    inform   Holmes,      in

writing,       of    his     right      to     petition      the   Supreme     Court     of   the

United States for further review.                           If the client requests such

                                                    5
petition be filed, but counsel believes that doing so would be

frivolous,   counsel   may   move   this    court   to   withdraw   from

representation.   Counsel’s motion must state that a copy of the

motion was served on the client.        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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