                              ON REHEARING

                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 08-4568


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

           v.

YOLANDA CRAWLEY,

                Defendant – Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.     J. Frederick Motz, District Judge.
(1:07-cr-00066-JFM-2)


Argued:   November 2, 2009                   Decided:   January 11, 2010


Before TRAXLER,    Chief     Judge,   and   DUNCAN   and   AGEE,   Circuit
Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Flynn Marcus Owens, Baltimore, Maryland, for Appellant.
Kwame Jangha Manley, OFFICE OF THE UNITED STATES ATTORNEY,
Baltimore, Maryland, for Appellee.    ON BRIEF: Jack B. Rubin,
RUBIN & OWENS, Baltimore, Maryland, for Appellant.      Rod J.
Rosenstein, United States Attorney, Baltimore, Maryland, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

                                         I.

         Yolanda Crawley pled guilty to one count of wire fraud in

violation of 18 U.S.C.A. § 1343 (West Supp. 2008).                       Crawley and

the government stipulated in a plea agreement (“the Agreement”)

that she had knowingly and willfully worked with her son, Sean

Green, and two other people to submit mortgage applications and

documents      containing     false    information      about      her   income   and

employment     so   as   to   obtain     loans   to    buy   two    properties    in

Florida.       The Agreement further provided that the government

“does    not    oppose    a   two-level       reduction”     for    acceptance    of

responsibility pursuant to U.S. Sentencing Guidelines Manual §

3E1.1 (2007), and that Crawley was eligible for an additional

one-level reduction under § 3E1.1(b). 1               J.A. 13.

     The government promised in Paragraph 13 of the Agreement

that it would “make a sentencing recommendation within the low

end of the guideline range determined by the Court,” but the

Agreement also provided that, if Crawley breached its terms, the

government     would     be   released   from    its    obligations       under   the

     1
       The district court may give a two-level reduction in
offense level if it determines that the defendant has accepted
responsibility for her offense. USSG § 3E1.1(a).         If the
defendant qualifies for a reduction under subsection (a) and the
government moves for an additional one-level reduction based on
the defendant's timely notice of her intent to plead guilty, the
district court should grant it. USSG § 3E1.1(b).



                                          2
Agreement and would be free to recommend any sentence that it

considered    appropriate.         The    Agreement       provided         that   Crawley

would be in breach if she knowingly withheld information; gave

false,    incomplete     or     misleading         testimony         or    information;

falsely   minimized     the     involvement        of    any        person,     including

herself; “or failed to accept personal responsibility for her

conduct by failing to acknowledge her guilt to the probation

officer who prepares the Presentence Report.”                       J.A. 15.

     In the presentence report (“PSR”), the probation officer

recommended     a      two-level         adjustment           for     acceptance          of

responsibility,       stating      that        Crawley         had        admitted    her

involvement in the offense and accepted responsibility for her

actions, and noting that the government had agreed to recommend

an   additional      one-level      reduction.           With        the      three-level

adjustment under § 3E1.1, the recommended offense level was 14

and Crawley was in criminal history category I. The recommended

advisory guideline range was thus 15-21 months.

     Before sentencing, and before Crawley filed her sentencing

memorandum    with   the   district        court,       the    government         filed   a

sentencing    memorandum      in   which      it   agreed      with       the   guideline

calculation in the PSR, but stated that it had given notice to

Crawley that the district court might depart upward based on her

criminal conduct.       The government also noted that the district

court “has expressed concerns about the nature of these crimes

                                          3
and their facilitation of drug-related activities.” 2                        J.A. 46.

The government asserted that Crawley believed Green was a drug

dealer when she committed the offense because “Crawley knew that

Green had no legitimate income and enjoyed a high-end lifestyle

of expensive homes, expensive cars, and hundred[s] of thousands

of   dollars    in    cash.”    J.A.      46.      The   government    alleged      that

Crawley   “personally        received       over    $240,000    in    cash    from    an

individual [Green] she believed was involved in drug dealing.

She wired payments, wrote checks, and otherwise facilitated the

laundering of much of these funds.” J.A. 50.                          The government

concluded with the following recommendation:

      In short, the Government believes that a significant
      sentence of jail time is appropriate. The Court has
      already expressed concerns as to why Crawley and
      others in this case were not charged in a drug
      conspiracy. As always, the Court can incorporate its
      evaluation of Crawley's criminal conduct in imposing
      an upward departure under the advisory guidelines
      and/or an upward variance under Section 3553 factors.
      The   Government  believes    a significant term   of
      incarceration is appropriate.

J.A. 51-52.

      Crawley    responded       by       asserting      in   her    own    sentencing

memorandum     that    she     had   no    direct     knowledge      that   Green    was

involved with drugs, and that she believed her son was proposing

a legitimate business venture when he asked her to help him buy

      2
       The district court apparently expressed these concerns
when sentencing Crawley's co-defendants.



                                            4
real estate using her good credit.               She stated that she believed

he had the money to make the mortgage payments legitimately and

denied that she had knowingly helped to launder drug proceeds.

     The    day     before      sentencing,     the    government         submitted     a

letter to the court disputing Crawley's assertions that she did

not know Green was involved with drugs in connection with the

mortgage fraud and that she believed he had enough legitimate

income     to     make    the     mortgage     payments.            The     government

represented       that,    in     her     post-arrest        interview       with     law

enforcement officers, Crawley said she suspected that Green was

dealing drugs, and explained why she harbored such suspicions.

The government stated that it would not move for the additional

one-level reduction for acceptance of responsibility and gave

notice that it would recommend an above Guidelines sentence of

thirty months imprisonment.

     At the sentencing hearing, the district court noted that

Crawley had not been charged with a drug crime, but expressed

concern    that     she    was    denying      any    knowledge      of    her      son's

involvement with drug dealing, despite her statements to the

agents after her arrest. The government asked for the thirty-

month     sentence,       stating       that   it     was     released       from     its

obligations under the Agreement because Crawley had breached its

terms.      The    district      court    determined        that   Crawley    had    not

accepted responsibility and had tried to conceal the extent of

                                           5
her knowledge about the mortgage fraud.                     Nevertheless, the court

awarded      Crawley      the    two-level         adjustment    for     acceptance       of

responsibility recommended in the presentence report but, absent

the government’s request, did not award the one-level reduction

pursuant to § 3E1.1.             Crawley's total offense level was thus 15

with a guideline range of 18-24 months instead of the 15-21

months      set   out     in    the   PSR.         The   district      court    imposed     a

sentence of twenty-four months and ordered restitution.

       On   appeal,       Crawley     argued       for   the   first     time    that     the

government breached the Agreement by not recommending a sentence

at    the   low    end    of    the    advisory      guideline        range    as   it    was

obligated to do under the terms of the Agreement.                               We agreed

that the government failed to fulfill its obligation under the

Agreement’s terms, concluded that Crawley had shown prejudice

under the plain error standard of review, vacated the sentence

and remanded the case for resentencing before a different judge.

United States v. Crawley, 321 F. App'x 310 (4th Cir. March 30,

2009) (No. 08-4568).

       The government filed a timely petition for rehearing, not

contesting        our    finding      that    it    breached     the    Agreement,        but

contending that the breach itself might not constitute prejudice

under Puckett v. United States, 129 S. Ct. 1423, 1432 (2009).

Pursuant to Local Rule 41(d)(1) we stayed the mandate, granted

the   petition      for    rehearing         and   directed     the    parties      to   file

                                               6
supplemental         briefs    addressing        whether,   in   light       of    Puckett,

“the       government’s       breach   of   the     plea    agreement        constitutes

prejudice to the defendant.” J.A. 39.                        We now conclude that

Crawley has not made the necessary showing of prejudice.



                                            II.

       In Puckett, the defendant pled guilty pursuant to the terms

of a plea agreement and, assuming he complied with its terms,

the government agreed to request a three-level reduction for his

acceptance of responsibility. 3             Id. at 1426-27.           Between the time

of the plea and his sentencing almost three years later, the

defendant engaged in additional criminal conduct.                           Id. at 1427.

Despite       having    filed     a     motion      requesting        the    three-level

reduction in offense level “a long time” prior to the sentencing

hearing, the government made clear that it now opposed any such

reduction.       Id.

       The district court stated that even if it possessed the

discretion to grant the reduction in offense level, it would not

do   so.       Id.      Nonetheless,        the     district     court       adopted   the

government’s recommendation pursuant to the plea agreement and

sentenced       the    defendant       at   the    low     end   of    the    applicable


       3
        This   three-level  reduction                    included      the        one-level
reduction pursuant to § 3E1.1.



                                             7
advisory guidelines range as calculated, but without the benefit

of the three-point reduction.           Id.    At no time did the defendant

object     that   the    government     had   violated    its   obligations   by

failing to request the three-level reduction or move to withdraw

his plea.      Id.

      On appeal to the Fifth Circuit the government, as in this

case, conceded it had breached the plea agreement but asserted

that by failing to raise the issue in the district court the

defendant had forfeited any such claim on appeal.                   Id. at 1427-

28.     Applying the plain error standard set forth in Rule 52, the

Court     of   Appeals    held   that    regardless      of   the   government’s

breach, the defendant “had not satisfied the third prong of the

plain-error analysis by demonstrating that the error affected

his substantial rights, i.e., caused him prejudice.”                     Id. at

1428. 4




      4
          In Olano the Supreme Court explained that

(Continued)
                                         8
     On appeal from the Fifth Circuit, the Supreme Court held

that the plain-error test set forth in Rule 52(b) “applies to a

forfeited claim . . . that the Government failed to meet its

obligations     under    a   plea    agreement.”       Id.      As   part   of    its

analysis the Supreme Court specifically rejected the defendant’s

assertion     that   the     third    prong    of   plain    error   review,      the

prejudice prong, did not apply because “plea-breach claims fall

within   ‘a    special     category    of     forfeited     errors   that   can    be




              Rule   52(b)   review-so-called  “plain-error
              review”-involves   four   steps,  or   prongs.
              First, there must be an error or defect-some
              sort of “[d]eviation from a legal rule”-that
              has not been intentionally relinquished or
              abandoned, i.e., affirmatively waived, by
              the appellant.    Id., at 732-733, 113 S.Ct.
              1770.      Second, the legal error must be
              clear or obvious, rather than subject to
              reasonable dispute.     See id., at 734, 113
              S.Ct. 1770.     Third, the error must have
              affected the appellant's substantial rights,
              which in the ordinary case means he must
              demonstrate that it “affected the outcome of
              the district court proceedings.”         Ibid.
              Fourth and finally, if the above three
              prongs are satisfied, the court of appeals
              has the discretion to remedy the error-
              discretion which ought to be exercised only
              if the error “‘seriously affect[s] the
              fairness, integrity or public reputation of
              judicial proceedings.’”     Id., at 736, 113
              S.Ct.   1770   (quoting   United   States   v.
              Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391,
              80 L.Ed. 555 (1936)).

Puckett, 129 S. Ct. at 1429.



                                         9
corrected regardless of their effect on the outcome.’” 129 S.

Ct. at 1432 (quoting United States v. Olano, 507 U.S. 725, 735

(1993)).       The Court saw “no need to relieve the defendant of his

usual       burden    of    showing    prejudice”          because      doing       so    would

nullify      Olano’s       “instruction     that     a    defendant      normally         ‘must

make    a    specific       showing    of    prejudice’          in    order    to       obtain

relief.” Id. at 1433.



                                            III.

        Prior to granting rehearing, we held that “Crawley did not

receive the benefit of her bargain.                      Therefore, we are satisfied

that     she    was     prejudiced     and        that     the   government's            breach

constitutes plain error that should be addressed on appeal.” 321

F.     App'x    at    313–14.         Despite       Crawley’s         arguments      to     the

contrary, Puckett dictates a different result.

       The defendant in Puckett argued that “[w]hen the Government

breaks a promise that was made to a defendant in the course of

securing a guilty plea, the knowing and voluntary character of

that plea retroactively vanishes, because (as it turns out) the

defendant was not aware of its true consequences.”                            Puckett, 129

S. Ct. at 1429.             Accordingly, an appellate court “must always

correct the error.”               Id. at 1430.           The Supreme Court rejected

this     argument       because     “the    Government's          breach       of    a     plea

agreement       [does      not]    retroactively          cause[]       the     defendant's

                                             10
agreement to have been unknowing or involuntary.”                   Id.     The

Court went on to explain that

          [t]he defendant whose plea agreement has been
     broken by the Government will not always be able to
     show   prejudice,  either   because  he   obtained  the
     benefits contemplated by the deal anyway (e.g., the
     sentence that the prosecutor promised to request) or
     because he likely would not have obtained those
     benefits in any event (as is seemingly the case here).

Id. at 1432–433.

     In Puckett, the Supreme Court plainly rejected the view

that the government’s breach of a plea agreement constitutes de

facto prejudice.      “[T]he question with regard to prejudice is

not whether [the defendant] would have entered the plea had he

known about the future violation.         When the rights acquired by

the defendant relate to sentencing, the “‘outcome’” he must show

to have been affected is his sentence.”         Id. at 1433 n.4 (2009).

Therefore, our previous conclusion that Crawley satisfied the

prejudice prong merely because she “did not receive the benefit

of her bargain” was incorrect.        See id. (“It is true enough that

when the Government reneges on a plea deal, the integrity of the

system   may   be   called   into   question,   but   there   may    well   be

countervailing factors in particular cases.”); United States v.

Massenburg, 564 F.3d 337, 344 (4th Cir. 2009) (“It is rare that

an error is presumed prejudicial under the plain error standard

of review.”).       As Crawley acknowledges, she must “demonstrate




                                     11
that     the    Government’s         breach        affected     the    outcome     of     the

sentence she received.”              Supp. Brief of Appellant at 9.

       Crawley asserts that the facts in Puckett are “in stark

contrast”       to    her     case     in    that     Puckett     involved       continued

criminal activity by the defendant after his plea.                             Such action

precluded a finding of prejudice because “the District Court

likely would have declined to grant the reduction in any event,”

even if the government had not breached its agreement.                                  Supp.

Brief of Appellant at 8; see Puckett, 129 S. Ct. at 1433 (“Given

that [the defendant] obviously did not cease his life of crime,

receipt        of     a     sentencing        reduction         for     acceptance         of

responsibility            would    have     been     so   ludicrous       as    itself     to

compromise      the       public     reputation      of    judicial     proceedings.”).

Crawley argues that because she did not “perpetrate[]. . . such

outrageous       conduct      pending       disposition,”        the    district        court

might have imposed a reduced sentence if the Government had so

moved.     Supp. Brief of Appellant at 8-9.                     The district court’s

own statements, however, clearly indicate otherwise.

       During       the    sentencing       hearing       the   district       court     told

Crawley that “if for some reason somebody should say that I

should have given the extra point, I would have sentenced you

above the [sentencing] guidelines.”                       J.A. 99.      This statement

plainly    indicates         that    the    government’s        failure    to    seek     the



                                              12
additional one-point reduction pursuant to § 3E1.1(b), although

a breach of the plea agreement, did not prejudice Crawley. 5

        In    short,   it   is    Crawley’s    burden    to    “make    a     specific

showing of prejudice.” Olano, 507 U.S. at 735.                      She “must show

that an error occurred, that the error was plain, and that it

affected [her] substantial rights.”                  United States v. Jeffers,

570 F.3d 557, 569 (4th Cir. 2009) (citing Olano, 507 U.S. at

732); Massenburg, 564 F.3d at 342-43 (stating that defendant

bears        burden    of   establishing       each     of    the      plain    error

requirements).          Crawley    has   not   met    this    burden    and    is   not

entitled to relief.



                                         IV.

     For the foregoing reasons we affirm Crawley’s sentence as

imposed by the district court.

                                                                              AFFIRMED




        5
       Crawley also argues that “the Government would hold [her]
to the insurmountable task of proving that her sentence would
have been different but for its breach.”         Supp. Brief of
Appellant at 9 (emphasis added).      Citing Massenburg, Crawley
asserts that she only needs to “show a reasonable probability
that her sentence would have been different but for the breach.”
Id. at 10. In light of the district court’s explicit statement
however, Crawley cannot show prejudice under either standard.



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