                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 13-4325


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

BENJAMIN WEATHERLY,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.    Anthony John Trenga,
District Judge. (1:12-cr-00477-AJT-2)


Submitted:   October 31, 2013             Decided:   November 7, 2013


Before MOTZ, KING, and WYNN, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Edwin S. Booth, SHUTTLEWORTH, RULOFF, SWAIN, HADDAD & MORECOCK,
PC, Virginia Beach, Virginia, for Appellant. Neil H. MacBride,
United States Attorney, Maya D. Song, Kosta S. Stojilkovic,
Assistant United States Attorneys, Alexandria, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

                Benjamin        Weatherly          seeks        to    appeal       the     120-month

sentence        imposed     after       he     pled       guilty,       pursuant         to     a    plea

agreement, to one count of conspiracy to commit bank fraud, in

violation of 18 U.S.C. §§ 1344, 1349 (2012), and one count of

aggravated        identity         theft,           in      violation            of      18     U.S.C.

§ 1028A(a)(1)         (2012).           On    appeal,       Weatherly            argues       that    the

Government breached the plea agreement by arguing in support of

an enhancement of his offense level for use of sophisticated

means,     pursuant        to    U.S.        Sentencing         Guidelines         Manual       (USSG)

§ 2B1.1(b)(10)(C) (2012).                    The Government responds that it did

not   breach      the      plea    agreement,             and    that       Weatherly’s         appeal

should     be    dismissed        based       on    the    waiver          of    appellate      rights

included in the plea agreement.

                The   plea      agreement          included          the    parties’       agreement

regarding the base offense level and enhancements for intended

loss,      number     of    victims,          and       obstruction         of    justice.            The

agreement       further      noted       that       the    parties         would       litigate       the

applicability of a two-level enhancement for a leadership role

pursuant to USSG § 3B1.1, but did not mention the applicability

of    an    enhancement           for        sophisticated            means       or      any       other

Guidelines provisions.              In the presentence investigation report,

the probation officer recommended the base offense level and



                                                    2
enhancements       recommended         in      the       plea     agreement,      and      also

recommended       enhancements          for        use     of     sophisticated         means,

possession or use of an authentication device, and leadership

role.       USSG        §§ 2B1.1(b)(10)(C),              2B1.1(b)(11)(A),         3B1.1(b).

Weatherly       objected       to    essentially          the    entire    offense      level

calculation.       The Government agreed that the enhancement for an

authentication device should not apply, but requested a sentence

within    the     Guidelines         range     determined         after    deleting        that

enhancement.       The district court sustained Weatherly’s objection

to the authentication device enhancement, overruled his other

objections,      and     sentenced      Weatherly          to     ninety-six      months     of

imprisonment       on    the     conspiracy        count        and    twenty-four      months

consecutive on the identity theft count, for a total sentence of

120 months of imprisonment.

            On appeal, Weatherly argues that the plea agreement

contemplated       all    Guidelines         provisions          and    enhancements,       and

because     it     did     not       mention       an      enhancement      for      use     of

sophisticated means, the Government breached the agreement by

arguing in support of the enhancement.                           Because Weatherly did

not     assert    before       the    district           court    that    the   Government

breached the plea agreement, this court’s review is for plain

error.     Puckett v. United States, 556 U.S. 129, 133-34 (2009)

(holding Fed. R. Crim. P. 52(b) plain error rule applies to



                                               3
claim of breach of plea agreement).                   Accordingly, Weatherly must

show   not   only    that   the    Government         plainly     breached   his   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    affect[s]         the   fairness,    integrity    or

public   reputation         of    the     judicial        proceedings.”        United

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

quotation marks and alteration omitted).

             “The interpretation of plea agreements is guided by

contract law, and parties to the agreement should receive the

benefit of their bargain.”              Id.       This court “appl[ies] the plain

meaning of the agreement’s terms with the goal of providing each

party the benefit of its bargain.”                    United States v. Weon, 722

F.3d 583, 588 (4th Cir. 2013).                    The Government breaches a plea

agreement when a promise it made to induce the plea remains

unfulfilled.        Santobello v. New York, 404 U.S. 257, 262 (1971).

But, “the government is held only to those promises that it

actually made, and the government’s duty in carrying out its

obligations under a plea agreement is no greater than that of

fidelity to the agreement.”               United States v. Dawson, 587 F.3d

640, 645 (4th Cir. 2009) (internal quotation marks and citation

omitted); see also United States v. Davis, 689 F.3d 349, 353

(4th Cir. 2012) (“Davis’s claim for breach fails insofar as he



                                              4
seeks      the    benefit     of    a     promise         that    the    government          never

made.”).

              Our review of the record leads us to conclude that the

Government did not breach the plea agreement.                              The section of

the       agreement      containing            the        Guidelines       recommendations

specifically        referred       to    the     provision        in    Rule    11       regarding

nonbinding         sentence        recommendations.                Fed.        R.        Crim.   P.

11(c)(1)(B).            Further,        the    agreement         contained          no    language

precluding the parties from arguing the applicability of other

Guidelines provisions that might be recommended by the probation

officer.         Finally, the agreement stated that it was the entire

agreement between the parties and that “[a]ny modification of

this plea agreement shall be valid only as set forth in writing

in    a   supplemental        or    revised          plea    agreement     signed          by    all

parties.”

              When the government seeks to enforce an appeal waiver

and did not breach its obligations under the plea agreement, the

court     will     enforce    the       waiver       if   the    defendant’s         waiver      was

knowing and intelligent and the issues raised on appeal fall

within the scope of the agreement.                         United States v. Blick, 408

F.3d 162, 168-69 (4th Cir. 2005).                            The waiver in this case

provided         that   Weatherly         waived          “the   right     to       appeal       the

conviction and any sentence within the statutory maximum . . .



                                                 5
(or the manner in which that sentence was determined) on the

grounds set forth in Title 18, United States Code, Section 3742

or on any ground whatsoever.”

               This court reviews the validity of an appellate waiver

de novo.       United States v. Manigan, 592 F.3d 621, 626 (4th Cir.

2010).     To determine whether an appeal waiver is knowingly and

intelligently entered, the court examines the totality of the

circumstances,         including     the    defendant’s   experience,       conduct,

educational         background,      and   familiarity    with   the    agreement’s

terms.     United States v. General, 278 F.3d 389, 400 (4th Cir.

2002).

               In    this    case,   Weatherly     does   not    assert    that   the

appellate waiver was not knowing or intelligent, or that his

agreement to the waiver was in any way involuntary.                       Our review

of the plea hearing transcript reveals that the district court

confirmed that Weatherly was competent to plead guilty, and that

he had discussed the plea agreement with counsel before signing

it.      The    court       specifically     questioned   Weatherly       about   the

appellate waiver and confirmed that he understood he was waiving

his right to appeal by entering the agreement.                          Because the

district       court        sentenced      Weatherly   within     the     applicable

statutory maximums, and he raises no claim outside the scope of

the waiver, it is valid and enforceable.



                                             6
          According, we dismiss Weatherly’s appeal.             We dispense

with oral argument because the facts and legal contentions are

adequately   presented   in   the   materials   before   this    court   and

argument would not aid the decisional process.



                                                                  DISMISSED




                                     7
