                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-4213


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

DARYL WENDELL BARLEY, a/k/a Black,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Danville.    Jackson L. Kiser, Senior
District Judge. (4:10-cr-00010-jlk-1)


Submitted:   October 27, 2011             Decided:   November 4, 2011


Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Rena G. Berry, Roanoke, Virginia, for Appellant.      Timothy J.
Heaphy, United States Attorney, Donald R. Wolthuis, Assistant
United States Attorney, Roanoke, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Pursuant   to   a    plea   agreement,   Daryl   Wendell   Barley

pled guilty to one count of distribution of more than fifty

grams of cocaine base and one count of possession with intent to

distribute cocaine powder, in violation of 21 U.S.C. § 841(a)(1)

(2006).   The district court sentenced Barley to concurrent terms

of 292 months’ imprisonment.

           Despite the waiver of the right to appeal included in

his plea agreement, Barley seeks to appeal his sentence, arguing

that the appeal waiver is not enforceable because the Government

breached the plea agreement by seeking a sentence based on a

higher drug quantity than the stipulated quantity and that the

district court erred by finding that Barley breached the plea

agreement.    He further argues that the district court erred in

determining the drug quantity attributable to him and that the

sentence is unreasonable and excessive.         The Government contends

that Barley’s appeal is barred by the appeal waiver.

           A defendant may waive the right to appeal pursuant to

a valid plea agreement.        United States v. Manigan, 592 F.3d 621,

627 (4th Cir. 2010).           Whether a defendant validly waived his

right to appeal is a question of law that this court reviews de

novo.     United States v. Blick, 408 F.3d 162, 168 (4th Cir.

2005).



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               Barley does not challenge the validity of his plea

agreement or the appeal waiver.                      However, he claims that the

appeal    waiver       is    not   enforceable            against   him    because    the

Government breached the plea agreement by seeking a sentence

based on a higher quantity of drugs than stipulated in the plea

agreement.       Furthermore, he argues that the district court erred

by finding that he had violated the terms of his plea agreement.

               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).                     A criminal defendant asserting

the Government breached a plea agreement bears the burden of

proving    such    a     breach    by     a       preponderance     of    the    evidence.

United States v. Snow, 234 F.3d 187, 189 (4th Cir. 2000).

               The plea agreement expressly provided that if Barley

failed    to    comply      with   part      of    the    agreement,     the    Government

could “refuse to abide by any provision, stipulations, and/or

recommendations        contained        in        this    plea   agreement.”         After

reviewing the record, we conclude that, prior to sentencing,

Barley engaged in criminal conduct, thus violating the terms of

the plea agreement.           Such a breach released the Government from

its obligations under the agreement.                      United States v. Bowe, 309

F.3d 234, 237 (4th Cir. 2002); United States v. West, 2 F.3d 66,



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69-70   (4th    Cir.   1993).     Accordingly,     we    conclude    that   the

Government did not breach the plea agreement.

           Because     Barley’s    claim   of   the     Government’s    breach

fails, all terms of the plea agreement, including the appeal

waiver,   are    enforceable     against   Barley.       Moreover,     Barley’s

claims on appeal fall squarely within the scope of the appeal

waiver.   Accordingly, we dismiss Barley’s appeal.                 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.

                                                                     DISMISSED




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