UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                       No. 95-5821
DARRELL K. BROWN, a/k/a Stewart
Tyrone Martin, a/k/a Martin
Stewart, a/k/a Byron McIntyre,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Alexander Williams, Jr., District Judge.
(CR-95-46-AW)

Submitted: August 27, 1996

Decided: October 23, 1996

Before RUSSELL, WIDENER, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

James K. Bredar, Federal Public Defender, Mark R. Wagner, Assis-
tant Federal Public Defender, Greenbelt, Maryland, for Appellant.
Lynne A. Battaglia, United States Attorney, Sandra Wilkinson, Assis-
tant United States Attorney, Maury Epner, Assistant United States
Attorney, Greenbelt, Maryland, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Darrell K. Brown seeks to appeal the 24-month sentence imposed
on him after he pled guilty to conspiracy to commit bank fraud, 18
U.S.C.A. § 371 (West 1966 & Supp. 1996), pursuant to a plea agree-
ment. He contends that the government breached the plea agreement
when it failed to recommend a sentence at the low end of the guide-
line range at his sentencing hearing and requests resentencing with
specific performance. We find that the government's breach was trig-
gered by Brown's own failure to honor his obligations under the
agreement. Consequently, Brown is not entitled to resentencing and
we affirm the sentence.1

Brown's plea agreement provided that the government would move
for a sentence at the low end of the guideline range. The agreement
did not obligate Brown to cooperate; however, it did require that he
"not commit any offense in violation of federal, state or local law"
between the date of the agreement and his sentencing. The probation
officer recommended a guideline range of 18-24 months. However,
between the time Brown entered his guilty plea and the date of sen-
tencing, the government became convinced that Brown had lied dur-
ing plea negotiations when he identified a woman photographed with
him making a fraudulent transaction at an ATM machine as a trans-
sexual either dead or dying of AIDS, whom he could not identify or
locate. The government presented evidence at the sentencing hearing
that the woman was Brown's sister, Regina Brown-Thompson, and
asked for an adjustment for obstruction of justice. 2 The district court
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1 Brown's plea agreement contained a provision by which he waived all
rights to appeal any sentence imposed unless the district court departed
above the guideline range. Because of the parties' mutual breach of the
agreement, we find the waiver inoperative.
2 United States Sentencing Commission, Guidelines Manual § 3C1.1
(Nov. 1994).

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declined to make the obstruction of justice adjustment, but expressed
its belief that Brown had indeed lied, and sentenced him to a term of
24 months, the top of the guideline range. Apart from arguing for the
obstruction of justice adjustment, the government did not make a rec-
ommendation concerning the sentence at the hearing. Brown requests
resentencing with specific performance under Santobello v. New York,
404 U.S. 257 (1971) (promise which induces guilty plea must be ful-
filled).

The government is relieved of its obligations under a plea agree-
ment if the court which accepted the agreement finds that the defen-
dant has failed to carry out his obligation. United States v. Simmons,
537 F.2d 1260, 1261 (4th Cir. 1976). In this case, the district court
found that, to conceal his sister's involvement, Brown lied to the gov-
ernment after he signed the plea agreement on May 18, 1995,3 and
continued to lie during the sentencing proceeding. Thus, the govern-
ment's failure to recommend a sentence at the low end of the guide-
line range does not require that Brown be resentenced.

We therefore affirm the sentence. 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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3 Brown entered his plea in the district court on June 9, 1995.

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