                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 15-4023


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

DAVID LEE PARKER,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (1:12−cr−00059−GBL−1)


Argued:   September 20, 2016                 Decided:   December 2, 2016


Before TRAXLER and DUNCAN, Circuit Judges, and DAVIS, Senior
Circuit Judge.


Dismissed by unpublished per curiam opinion.


ARGUED: Frances H. Pratt, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Alexandria, Virginia, for Appellant.      Richard Daniel Cooke,
OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for
Appellee.   ON BRIEF: Geremy C. Kamens, Acting Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria,
Virginia, for Appellant.       Dana J. Boente, United States
Attorney,   Christopher   Catizone,  Assistant   United   States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       David Lee Parker seeks to appeal the 111-month sentence

entered on his convictions pursuant to his guilty plea to four

counts    of    fraud      (i.e.,      access          device      fraud,       wire        fraud,   and

fraud in connection with computers, in violation of 18 U.S.C.

§§ 1029(a)(2), 1343, and 1030(a), respectively) and two counts

of     identity       theft,     in        violation         of        18     U.S.C.     § 1028A(a).

Parker’s counsel filed a brief pursuant to Anders v. California,

386 U.S. 738 (1967), and the Government moved to dismiss the

appeal    based       on   an    appellate             waiver      contained           in     the    plea

agreement       between         the        parties.          Parker           filed     a      pro    se

supplemental         brief      raising       numerous            issues,        and     we    ordered

supplemental briefing on the issue of whether the Government

breached the plea agreement at sentencing. Finding no breach and

that the appeal waiver is enforceable, we grant the Government’s

motion and dismiss the appeal.

                                                  I.

       Parker     contends         that      the       Government             breached       the     plea

agreement       by     failing        to    recommend             at        sentencing       that    the

district court treat the four fraud counts individually, and

that     this        breach     constitutes             plain           error     affecting           his

substantial          rights.     As        part        of    the        plea     agreement,          the

Government promised that it would “recommend to the [district]

[c]ourt    that       at   least      [sic]       the       following         provisions        of    the

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Sentencing Guidelines apply.” J.A. 58. The plea agreement then

lists each fraud count -- Counts 1, 3, 5, and 6 -- with its base

offense level and loss amount. The plea agreement states that

U.S.S.G. § 2B1.1 applies to all four fraud counts.

      The presentence report grouped Counts 1, 3, 5, and 6 and

calculated        a     base    offense            level         of     7    for     the       group      under

U.S.S.G. § 2B1.1(a)(1). With 20 levels in increases and a three

level reduction for acceptance of responsibility, Parker’s total

offense level was 24. Parker’s criminal history was in Category

III, and the presentence report calculated his Guidelines range

for   the       group    at    63     to      78    months’            imprisonment.           Separately,

Parker      was        subject        to       consecutive                  terms     of       24     months’

imprisonment           on     Counts       2       and       4    (identity          theft),         and    the

presentence           report        calculated               these          prison        terms      as     his

Guidelines sentences for those counts. Parker contends that his

total advisory sentencing range would have been lower without

grouping.

      At Parker’s initial sentencing in May 2012, the district

court orally           announced       a       sentence           of       concurrent       terms      of   78

months’         imprisonment         on       Counts         1,       3,     and     5,    a    concurrent

sentence of 60 months’ imprisonment on Count 6, and “a sentence

of 24 months consecutive to all other counts for each other for

Counts      2    and    4,”     for       a    total         sentence         the     court         concluded

amounted to 111 months’ imprisonment (rather than 112 months).

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J.A. 129. After the court excused the parties, it “adjust[ed]

[the sentence] to 111” by imposing concurrent sentences of 50

months on Counts 1, 3, and 5, “plus 60.” J.A. 133-34.

      Despite       these       oral        pronouncements,            the    district         court’s

docket shows apparent revisions to Parker’s sentence on three

additional occasions: (1) a minute entry reflects the imposition

of another 111-month total prison term; (2) a June 11, 2012,

judgment      reflects          the    imposition          of    another       111-month         total

prison term; and (3) a June 19, 2012, amended judgment reflects

the   imposition           of   yet        another      111-month           total    prison     term.

Parker did not note an appeal from these judgments.

      Later, Parker filed a 28 U.S.C. § 2255 motion to vacate,

and the district court denied relief. Parker appealed, and we

concluded,       in    granting            a     certificate           of    appealability,          as

follows:      (1)     that      the    district          court     lacked       jurisdiction         to

modify    Parker’s          sentence           after     June     6,    2012,       and    thus     the

sentences issued in the June 11 and June 19 judgments were of no

effect    and    not       subject         to     appellate       review;          (2)    as   to   the

“operative” sentence for review -- a 61-month sentence on Counts

2   and   4   --      we     determined           that     this    sentence          exceeded       the

statutory maximum for those counts and noted that Parker had

preserved       the    right          to       appeal     any     sentence          exceeding       the

statutory       maximum;         and        (3)     that    Parker           was     sentenced       in

violation of the laws of the United States and that the record

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did not conclusively show he was not entitled to relief on his

contention       that     counsel     rendered             ineffective        assistance.

Accordingly,     by     order    entered       on    April       9,   2014,   we   vacated

Parker’s     sentence      and     remanded.         At     the       resentencing,      the

district court again sentenced Parker to 111 months in prison.

                                        II.

     The Government makes three arguments that we cannot reach

the issue of whether the Government breached the plea agreement.

First,     the   Government      contends       that       Parker       has   waived     any

argument on appeal by focusing on the original sentencing, not

the resentencing. Parker correctly points out, however, that the

plea agreement, which is the subject of this appeal, applies to

both the original and subsequent sentencings.

     The    Government      next    argues          that    Parker      has   waived     the

argument that it breached the plea agreement by arguing before

the district court that Counts 1, 3, 5, and 6 were groupable.

Although    Parker’s      actions    before          the    district      court    can    be

construed as acceptance of the grouping, his failure to object

to the grouping does not waive his claim that the Government

breached the plea agreement.            See Puckett v. United States, 556

U.S. 129, 138 (2009).

     Finally,      the    Government       argues         that    the    law-of-the-case

doctrine precludes review of Parker’s claim. Parker’s § 2255

motion argued that the Government breached the plea agreement by

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applying the two-level enhancement for more than ten victims. We

dismissed that claim in our prior order, specifically holding

that   “[t]he     Government     did    not    breach    the    plea      agreement    by

agreeing with the presentence report’s recommendation to apply a

two-level enhancement to Parker’s offense level for an offense

involving ten or more victims.” J.A. 216-17. The law-of-the-case

doctrine applies to “the same issues in subsequent stages in the

same case.”           United States v. Aramony, 166 F.3d 655, 661 (4th

Cir. 1999). Whether the Government breached the plea agreement

by   agreeing     with     the   two-level      enhancement         and   whether     the

Government breached the plea by supporting the district court’s

grouping of the fraud counts are separate issues. Our previous

decision       held    only   that   the    Government        did   not    breach     the

agreement with regard to the two-level enhancement. Therefore,

the law-of-the-case doctrine does not apply to Parker’s argument

that the Government breached the plea agreement by agreeing to

the grouping of the fraud counts.

                                        III.

       We come, then, to the core of Parker’s present argument:

that     the    Government       breached      the     plea    agreement       by     not

recommending that Counts 1, 3, 5, and 6 be treated individually,

rather than grouped. Whether the Government breached the plea

agreement is a question of law that we review de novo. United

States    v.    Lopez,     219   F.3d   343,     346    (4th    Cir.      2000).    “[A]

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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 Parker did not raise this objection before

the district court, our review is for plain error. See United

States        v.     Mastrapa,    509    F.3d        652,   657    (4th    Cir.    2007).

Accordingly, Parker must show “(1) an error, (2) that is plain,

(3) that affects the defendant's substantial rights, and (4)

that     seriously         affects    the    fairness,        integrity,      or   public

reputation of judicial proceedings.” United States v. Dawson,

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

       “[W]e will not hold the Government to promises that it did

not actually make in the plea agreement.” United States v. Obey,

790 F.3d 545, 547 (4th Cir. 2015). The record does not reflect

that the Government promised Parker that the fraud counts would

be treated separately. Instead, the plea agreement stated that

“the United States and the defendant will recommend to the Court

that     at        least   the   following          provisions     of   the   Sentencing

Guidelines apply,” J.A. 58, and then listed each of the four

fraud counts and each count’s applicable base offense level and

loss amount. Despite Parker’s arguments to the contrary, the

plea agreement does not demonstrate that the parties understood

the    four        grouped   counts     would       be   treated   individually.     Plea

agreements are construed using principles imported from contract

                                                7
law, United States v. McQueen, 108 F.3d 64, 66 (4th Cir. 1997),

and are interpreted by the agreement’s “plain language in its

ordinary sense,” United States v. Jordan, 509 F.3d 191, 195 (4th

Cir.   2007).     It   is    undisputed      that   U.S.S.G.    §    2B1.1    is    the

applicable      Guideline     for    all    four    fraud    counts,    and    Parker

concedes that the counts were subject to mandatory grouping. See

U.S.S.G. § 3D1.2 (“When the offense level is determined largely

on the basis of the total amount of harm or loss,” counts “shall

be grouped together into a single Group” under subsection (d),

which expressly lists § 2B1.1 as a Guideline for which offenses

covered by it “are to be grouped”). Both defense counsel and the

Government are familiar with sentencing procedures. See J.A. 32

(district judge noting during the colloquy that defense counsel

“is a very experienced criminal defense attorney”). Thus, the

logical   reading      of    the    plea    agreement   is    that     it   does    not

address whether the fraud counts would be grouped because both

parties knew they had to be as a matter of law. Furthermore, if

the    parties    were      going   to     stipulate    to    something      that    is

contrary to the Guidelines, it is reasonable to expect the plea

agreement    to   state      that   explicitly.      Parker    has   presented       no

evidence demonstrating that the Government promised to treat the

fraud counts individually, and the plea agreement contained no

language precluding the Government from arguing that the fraud



                                            8
counts   should        be     grouped.       Accordingly,       we      find     that    the

Government did not plainly breach the plea agreement.

                                             IV.

      Even if one were persuaded by the rather awkward phrasing

of the plea agreement that the Government committed a breach of

the agreement, any such breach is, manifestly, harmless in the

circumstances of this case. An error is harmless and will not be

corrected   if    “it       did    not    affect     the   defendant’s         substantial

rights.” United States v. Lewis, 633 F.3d 262, 271 (4th Cir.

2011). “A defendant’s substantial rights are affected if the

error affected the outcome of the district court proceedings.”

Dawson, 587 F.3d at 645 (internal quotation marks omitted).

      The district court correctly grouped the fraud counts, as

it was required to do under the Sentencing Guidelines. Moreover,

the trial     court     has       sentenced       Parker   to   111     months    numerous

times,   providing          lengthy      explanations        for      its     exercise     of

discretion. At the first sentencing, the district court wanted

to impose a 111-month sentence but incorrectly apportioned the

counts. After we vacated the sentence and ordered resentencing,

the   district    court       again      sentenced     Parker      to   111    months     but

reallocated      the    months       among    the     counts       to   be     within    the

statutory maximums. Because the district court properly grouped

the counts and repeatedly imposed a 111-month sentence, Parker

cannot   plausibly          establish     that      his    substantial        rights     were

                                              9
affected     by    the    Government’s      alleged     breach    of   the      plea

agreement. See generally United States v. Savillon–Matute, 636

F.3d    119,      123    (4th   Cir.   2011)      (applying      “assumed    error

harmlessness       inquiry”     approach     in      analyzing    challenge       to

sentence).

                                       V.

       For   the    foregoing    reasons,      the   Government’s      motion    to

dismiss is GRANTED and this appeal is

                                                                       DISMISSED.




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