                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 09-5079


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

MICHAEL EUGENE THRASH, JR.,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Elizabeth City.     Malcolm J.
Howard, Senior District Judge. (2:09-cr-00003-H-1)


Submitted:   January 20, 2011               Decided:   February 16, 2011


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


Affirmed by unpublished per curiam opinion.


Diana Stavroulakis, Pittsburgh, Pennsylvania, for Appellant.
George E. B. Holding, United States Attorney, Jennifer P.
May-Parker,   Joshua   B.   Royster,  Assistant   United States
Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Michael Eugene Thrash, Jr., appeals his conviction and

210-month      sentence    imposed   following     his     guilty   plea   to   one

count of conspiracy to distribute and possess with intent to

distribute fifty grams or more of cocaine base and more than 500

grams of cocaine powder, in violation of 21 U.S.C. § 846 (2006).

On   appeal,    Thrash    contends    the     Government    breached   the      plea

agreement by withdrawing its motion for a reduction of sentence,

pursuant to U.S. Sentencing Guidelines Manual (“USSG”) § 5K1.1,

p.s. (2008).          Thrash also contends that the terms of his plea

agreement      were    breached   when   the    district    court   declined     to

apply a reduction for acceptance of responsibility, pursuant to

USSG § 3E1.1.          The Government denies that it has breached the

plea     agreement        and     contends      that     the    acceptance       of

responsibility claim is barred by Thrash’s waiver of his right

to appeal.      We affirm.

            This court “will not enforce an otherwise valid appeal

waiver against a defendant if the [G]overnment breached the plea

agreement containing that waiver.”              United States v. Cohen, 459

F.3d 490, 495 (4th Cir. 2006).               “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).    Because Thrash did not raise this issue in the district

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court, it is reviewed for plain error.                        See Puckett v. United

States, 129 S. Ct. 1423, 1428 (2009).                        To prevail under this

standard, Thrash must show not only that the Government plainly

breached the plea agreement, but also that he was prejudiced by

the error and that “the breach was so obvious and substantial

that failure to notice and correct it affected the fairness,

integrity     or    public     reputation       of    the    judicial      proceedings.”

United States v. McQueen, 108 F.3d 64, 65-66 (4th Cir. 1997)

(internal quotation marks and alteration omitted); see United

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

              Plea agreements are grounded in contract law, and both

parties should receive the benefit of their bargain.                                     United

States   v.    Chase,      466   F.3d     310,       314    (4th    Cir.   2006).           The

Government breaches the plea agreement when a promise it made to

induce the plea goes unfulfilled.                    See 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           than    the        defendant      .       .    .   for

imprecisions        or    ambiguities      in        plea    agreements.”                United

States v. Harvey, 791 F.2d 294, 300 (4th Cir. 1986).                                   Where an

agreement is ambiguous in its terms, the terms must be construed

against the Government.             Id. at 303.               However, “[w]hile the

[G]overnment must be held to the promises it made, it will not



                                            3
be bound to those it did not make.”                       United States v. Fentress,

792 F.2d 461, 464 (4th Cir. 1986).

                After     reviewing        the       record,       we     find     that   the

Government’s declination to move for a reduction in sentence was

not   in    breach       of    the    plea       agreement.        Moreover,        the   plea

agreement merely recommended that the district court apply a

reduction       for     acceptance        of    responsibility,         pursuant     to   USSG

§ 3E1.1, and this recommendation was not binding on the court.

To the extent that Thrash seeks to argue that the district court

erred      in    refusing       a    sentence        reduction      for      acceptance    of

responsibility, USSG § 3E1.1, this claim is barred by Thrash’s

unchallenged appellate waiver.

                Accordingly,         we        affirm    Thrash’s        convictions      and

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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