                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 06-4878



UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee,

           versus


ANTHONY PATTERSON, a/k/a Tony P,

                                                 Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Columbia.   Cameron McGowan Currie, District
Judge. (3:05-cr-00464-CMC-AL)


Argued:   September 28, 2007                 Decided:   January 14, 2008


Before MOTZ, Circuit Judge, HAMILTON, Senior Circuit Judge, and
Raymond A. JACKSON, United States District Judge for the Eastern
District of Virginia, sitting by designation.


Affirmed by unpublished opinion. Judge Jackson wrote the opinion,
in which Judge Motz and Senior Judge Hamilton joined.


ARGUED: David Bruce Betts, Columbia, South Carolina, for Appellant.
Jane Barrett Taylor, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.
ON BRIEF: Reginald I. Lloyd, United States Attorney, Columbia,
South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
JACKSON, District Judge:

     Anthony Allen Patterson appeals the district court’s refusal

to continue his sentencing hearing, its finding that he violated

his plea agreement, and its finding that he was not entitled to a

Government motion for downward departure.             For the reasons that

follow, we affirm.



                                       I.

     On May 18, 2005, Appellant Anthony Allen Patterson, along with

22 others, was charged in a 75 count superseding indictment for

conspiracy to distribute 5 kilograms or more of cocaine and 50

grams or more of cocaine base and various individual or jointly

undertaken   substantive       drug   distribution    charges.   J.A.   12-53.

Subsequent to his arrest, Patterson signed a proffer agreement with

the Government and agreed to cooperate.         J.A. 54.     As part of that

agreement he was to be “fully truthful and forthright with the

United   States    Attorney’s         Office...concerning      all   unlawful

activities.”      J.A.   54.      Additionally,      the   proffer   agreement

required Patterson to submit to a polygraph if requested. J.A. 55.

As long as Patterson abided by all of its terms, the agreement

provided that any statements made pursuant to that agreement would

not be used against him.        J.A. 56.    This protection, however, did

not extend to any information involving homicides or other crimes

of extreme violence. J.A. 56.




                                        2
       On September 22, 2006, Patterson pled guilty pursuant to a

written plea agreement. J.A. 9. Consequently, Patterson renewed his

agreement to cooperate and submit to a polygraph if requested by

the Government. J.A. 60-62. The plea agreement required Patterson

to     be     truthful    and    forthright    concerning     “importation    and

distribution of controlled substances, money laundering, firearms
offenses, income tax evasion and other unlawful activities...” J.A.

60. It also provided that the Government would move for a downward

departure in the event that Patterson abided by all terms of the

plea        agreement    and    provided   substantial      assistance   to   the

Government. J.A. 63-64.

       During the plea hearing, the Government advised the Court that

Patterson’s cooperation resulted in substantial assistance to the

Government, which would warrant a downward departure motion at the

time of sentencing if he continued to abide by the terms of his

plea agreement. J.A. 134-153. After his plea, the Government

received information that Patterson may have been involved in an

unsolved murder. J.A. 152-153. Instead of interviewing Patterson

under the plea agreement and the original proffer, which required

truthfulness       without      protection     from   self-incrimination,     the

Government offered him a revised proffer which would allow him to

be forthright concerning the murder without risk of prosecution.

J.A. 144-147, 153-154. Patterson signed the new proffer and was

debriefed.       However, he denied any knowledge of or involvement in

the homicide. J.A. 154. Subsequently, Patterson took a polygraph

and failed. J.A. 154.

                                           3
       A    pre-sentence        investigation      was   conducted     and   a   report

issued.      J.A.     198-226.     The     case    was   initially    scheduled       for

sentencing on May 24, 2006, but was cancelled and rescheduled for

June 19, 2006. J.A. 9.             At sentencing, the Government refused to

file   a     motion       for   downward    departure     based   upon    the    failed

polygraph, which was a violation of Patterson’s plea agreement.
J.A.   163.         The    district      court    held   that   the   nature     of   the

homicides, involving “firearms offenses,” required Patterson to

provide truthful information regarding the murders and pass a

polygraph to the Government’s satisfaction. The court further held

that because Patterson was unable to pass the test, the Government

was not required to make a downward departure even though it

confirmed Patterson had otherwise offered substantial assistance.

J.A. 168.

       Upon Patterson’s motion, the court continued sentencing until

July 20, 2006. J.A. 9-10. On July 14, 2006, Patterson again moved

for a continuance. J.A. 10.               The court granted Patterson’s second

motion and continued the hearing until August 14, 2006.                      The court

noted that no further continuances would be granted. J.A. 10.                         On

August 14, 2006, Patterson appeared for sentencing.                      J.A. 10.     He

again moved for a continuance in order to allow a psychiatrist to

examine him and determine if there was an explanation for his

failure to pass a polygraph other than being untruthful. J.A. 165-

166.       The motion was denied.           J.A. 167.     Patterson next moved to

withdraw his guilty plea, claiming it was only entered because he

had been assured that he had already earned a right to a downward

                                             4
departure motion, thereby avoiding a life sentence. The motion was

also   denied.      J.A.      165.    The      district     court    then     sentenced

Patterson to life in prison.           J.A. 186.



                                         II.

       We review the district court’s determination that Patterson

breached the plea agreement as a question of fact.                      Therefore, we

are governed by the “clearly erroneous” standard. United States v.

Conner, 930 F.2d 1073 (4th Cir. 1991).

       Patterson argues that the district court clearly erred when it

determined that his failure to pass a polygraph regarding a ten

year old unsolved and unrelated double homicide constituted a

failure    to    abide   by    all   the       terms   of   his     plea      agreement.

(Appellant’s     Br.,    8.)    He   highlights        Paragraph    4    of    his   plea

agreement with the Government, which provides in part that he:

       agrees to be fully truthful and forthright with the
       United States Attorney’s Office for the District of South
       Carolina and federal law enforcement agents in their
       investigation of...firearms offenses...and other unlawful
       activities, to include, but not limited to, truthful and
       complete debriefings of the Defendant’s knowledge
       concerning...firearms offenses...and other unlawful
       activities. (Emphasis added). (Appellant’s Br., 11.)

Patterson   essentially        asserts     that    neither    the       United    States

Attorney’s Office for the District of South Carolina nor any

federal law enforcement agency was interested in or engaged “in

the[] investigation of...firearms offenses” related to the unsolved

1997 murders in Richland County, South Carolina. Patterson argues

that he was not questioned for the purpose of aiding any federal


                                           5
investigation into “firearms offenses,” but merely for the purpose

of “helping a local Sheriff’s office in its attempt to close a ten

year old unsolved case.”            (Appellant’s Br., 13.) Patterson argues

that because information about the unrelated homicides was not

required by the plea agreement, the district court was clearly

erroneous    in     its    determination             that      the    attorneys     for    the
Government       were     entitled        to       declare       “their    unquestionable

obligation” to move for departure “null and void.” Id.

     The Government argues that Patterson’s assertion that the

issue on which he was tested was not covered by the plea agreement

is without merit. (Appellee’s Br., 12.) The plain language of

Patterson’s plea agreement required him to be fully truthful and

forthright concerning any unlawful activities, to submit to a

polygraph    examination,           and        pass       that       examination    to     the

Government’s satisfaction. (Appellee’s Br., 12.) The plea agreement

does not limit the requirement of truthfulness or of passing a

polygraph    to     matters      central        to       the   Government’s       case.    The

Government       argues   that      it    “has       a    significant      and    legitimate

interest    in    testing     the    credibility            of   the    defendant    and    in

assessing his overall value as a potential witness.” (Appellee’s

Br., 12.) Moreover, the Government argues that Patterson’s plea

agreement was designed to address these issues and, therefore,

served its purpose.

     The Court finds the district court did not clearly err when it

determined Patterson’s failure to pass a polygraph constituted a

breach of his plea agreement. The Supreme Court calls for a

                                               6
combination of contractual and constitutional waiver analysis in

analyzing the formation and enforcement of plea agreements. See

Santobello v. New York, 404 U.S. 257 (1971). The fairness of any

voluntary agreement turns upon the parties’ expectations that:(1)

the plea agreement will be honored by the other party and (2)

redress must be available when necessary in the courts.               Id. at

260-262.   This   Court   has   stated   that   with    predictability   and

reliance as the foundation of plea bargaining, the Court must apply

fundamental contract and agency principles to plea bargains as the

best means to fair enforcement of the parties’ agreed obligations.

United States v. McIntosh, 612 F.2d 835, 837 (4th Cir. 1979); see
also United States v. Martin, 25 F.3d 211, 216-17 (4th Cir.

1994)(stating judicial interpretation of plea agreements is largely

governed by law of contracts).

      In determining whether the district court clearly erred when

it   determined   that    Patterson’s    failure   to    pass   a   polygraph

constituted a breach of his plea agreement, the Court examined the

text of the agreement. Paragraph five of Patterson’s plea agreement

states the following:

      The Defendant, ANTHONY PATTERSON, agrees to submit to
      such polygraph examinations as may be requested by the
      Attorneys for the Government and agrees that any such
      examinations shall be performed by a polygraph examiner
      selected by the Attorneys for the Government. Defendant
      ANTHONY PATTERSON, further agrees that his failure to
      pass any such polygraph examination to the Government’s
      satisfaction will result, at the Government’s sole
      discretion, in the obligations of the Attorney’s for the
      Government within the Agreement becoming null and void.
      J.A. 61, 62



                                     7
Patterson agreed to submit to a polygraph examination if requested

and his failure to pass resulted in the Government’s obligation

becoming null and void “at the Government’s sole discretion.” Id.

Based on the clear language of the agreement, Patterson has failed

to satisfy his burden of proving the district court committed clear

error   in   its   finding   that   his    failure   to   pass   a   polygraph

constituted a failure to abide by all the terms of his plea

agreement.


                                    III.

     We determine a district court’s denial of a motion to continue

to be an abuse of discretion only when that court exhibits “an

unreasoning and arbitrary insistence upon expeditiousness in the

face of a justifiable request for delay.”            Morris v. Slappy, 461
U.S. 1, 11-12 (1983).        A determination not to grant a motion to

continue is within the broad discretion of the district court. Id.

     Patterson asserts that the district court abused its discretion

when it refused to grant his request for a continuance of his

sentencing hearing. (Appellant’s Br., 13.)            In support of this

conclusion, Patterson avers that a continuance would not have caused

undue delay and that a forensic psychiatrist indicated that the case

seemed very unique. (Appellant’s Br., 14.) Patterson further argues

that he was clearly prejudiced by the denial of the requested

continuance because without it, it was impossible to avoid a

mandatory life sentence. (Appellant’s Br., 15.) Under these unusual

circumstances, Patterson asserts, the district court abused its

                                      8
discretion in refusing a continuance of his sentencing hearing to

allow a psychiatrist to determine the reason he failed the polygraph

test. (Appellant’s Br., 15.)

       The Government claims Patterson’s arguments are wholly without

merit. The Government argues that it gave Patterson a “free pass”

on the murder if he had truthfully admitted his participation. J.A.

153, 158. The Government previously advised that Patterson had

substantially assisted the Government and, if he abided by all terms

of the plea agreement, was entitled to a downward departure. J.A.
158.    Therefore, if Patterson admitted the murder and passed a

polygraph, he would not have suffered the consequences for the

murder and would have received a motion for downward departure. J.A.

158. However, Patterson denied his involvement in the murder and

failed a polygraph. As the Government points out, the district court

denied the motion, stating:

       [A]t this point in the case, given the history of what
       has gone on, it is not reasonable to continue this case
       another time for sentencing to give a person who has had
       an opportunity to tell the truth an opportunity to try to
       convince the psychiatrist that because of some repressed
       memory he can’t remember what happened. That is just
       farfetched. J.A. 171

The facts of this case do not evidence “an unreasoning and arbitrary

insistence upon expeditiousness in the face of a justifiable request

for delay.” See Slappy, 461 U.S. at 11-12.

       Patterson   had   previously       requested   and   obtained   two

continuances of his sentencing hearing, and the court had ordered

that no further continuances would be granted. Despite this, the

court considered Patterson’s request and found that the basis for

                                      9
continuance was “farfetched.” Patterson has not cited any case in

which this Court found an abuse of discretion on facts similar to

facts in this case.    On the other hand, there is ample precedent

which establishes that the district court has broad discretion in

denying continuance motions. See United States v. Hedgepeth, 418

F.3d 411, 423-24 (4th Cir. 2005)(no abuse of discretion to deny

continuance motion on eve of sentencing based upon allegation that

attorney-client relationship deteriorated or on day of sentencing

to investigate whether defendant was entitled to departure for

diminished capacity); see also United States v. Attar, 38 F.3d 727,
735 (4th Cir. 1994)(no abuse of discretion to deny continuance to

secure new counsel after allowing former counsel to withdraw at

sentencing). Based on the above facts, the Court finds no error in

the district court’s denial of the motion to continue.



                                  IV.

     The district court’s determination that Patterson’s failure to

pass a polygraph constituted a failure to abide by all the terms of

his plea agreement and the district court’s refusal to grant

Patterson’s request for a continuance of his sentencing hearing were

proper.   Accordingly, for the reasons stated herein the judgment of

the district court is affirmed.


                                                           AFFIRMED




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