                              PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 14-4920


UNITED STATES OF AMERICA,

                Plaintiff − Appellee,

           v.

TINEKA S. MCLAUGHLIN,

                Defendant − Appellant,



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (5:14-cr-00057-F-1)


Argued:   January 28, 2016                Decided:   February 16, 2016


Before WILKINSON, DIAZ, and THACKER, Circuit Judges.


Dismissed by published opinion.      Judge Wilkinson wrote         the
opinion, in which Judge Diaz and Judge Thacker joined.


ARGUED: Eric Joseph Brignac, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant.        Phillip
Anthony Rubin, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
North Carolina, for Appellee.    ON BRIEF: Thomas P. McNamara,
Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Raleigh, North Carolina, for Appellant.       Thomas G. Walker,
United States Attorney, Jennifer P. May-Parker, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
North Carolina, for Appellee.
WILKINSON, Circuit Judge:

         This case concerns the proper construction of a waiver of

appellate rights signed by Tineka McLaughlin as part of her plea

agreement.      She    argues    that   despite     the   waiver,     she     is    still

allowed to challenge on appeal the district court’s imposition

of   a    four-level    role-in-the-offense          enhancement      under    Section

3B1.1(a) of the United States Sentencing Guidelines. For the

reasons that follow, we believe the issue was within the scope

of her waiver. We accordingly dismiss this appeal.

                                           I.

         Tineka McLaughlin pleaded guilty to bank fraud in violation

of   18    U.S.C.     § 1344    after   she     participated   in     an    ATM     fraud

scheme     in   Fayetteville,      North      Carolina.   As   part    of     her   plea

agreement, McLaughlin agreed

         To waive knowingly and expressly all rights, conferred
         by 18 U.S.C. § 3742, to appeal the conviction and
         whatever sentence is imposed on any ground, including
         any issues that relate to the establishment of the
         advisory Guideline range, reserving only the right to
         appeal from a sentence in excess of the applicable
         advisory Guideline range that is established at
         sentencing, and further to waive all rights to contest
         the conviction or sentence in any post-conviction
         proceeding, including one pursuant to 28 U.S.C.
         § 2255, excepting an appeal or motion based upon
         grounds of ineffective assistance of counsel or
         prosecutorial misconduct not known to the Defendant at
         the time of the Defendant’s guilty plea.

J.A. 42-43. At her August 4, 2014 plea hearing, the district

court     questioned     McLaughlin,       asking,    “Do   you     understand       you


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reserve only the right to appeal from an upward departure from

the advisory guideline range established at sentencing and that

you otherwise waive all rights to appeal whatever sentence is

imposed . . . ?” J.A. 39. McLaughlin responded, saying, “Yes,

sir.” Id.

       The district court subsequently sentenced McLaughlin to pay

restitution and to serve twenty-seven months’ imprisonment. Two

aspects of McLaughlin’s sentence are relevant to this appeal.

First, the court calculated McLaughlin’s Guideline range using a

four-level role-in-the-offense enhancement pursuant to U.S.S.G.

§ 3B1.1(a). This yielded an advisory Guideline calculation of 15

to   21    months.     Second,    the    district       court      imposed    an   upward

departure         sentence   under      U.S.S.G.       § 4A1.3(a)(1),         sentencing

McLaughlin to 27 months on the ground that the lower Guideline

range underestimated “the seriousness of [McLaughlin’s] criminal

history and likelihood of recidivism.” J.A. 107.

       McLaughlin      appealed.        She       appealed   only     the     § 3B1.1(a)

enhancement, not the upward departure. The United States moved

to dismiss, arguing that she waived her right to appeal issues

related to the establishment of her advisory Guideline range.

McLaughlin        countered,     arguing      that     because      she     received   “a

sentence in excess of the applicable advisory Guideline range

that      [was]    established    at     sentencing,”        the    appeal     could   go



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forward,       even       though     the    substance         of      the    appeal         did    not

actually concern the upward departure.

     The issue is not one that is unique to this case. See

United States v. Shawakha, 410 F. App’x 658 (4th Cir. 2011).

                                                 II.

     We start by examining the text of the waiver. The operative

provision has two clauses, a waiver clause and a reservation

clause. The waiver clause waives all right to appeal “whatever

sentence       is     imposed      on      any        ground,      including          any     issues

[relating]       to       the   establishment            of     the    advisory         Guideline

range.” J.A. 42. The reservation clause then withdraws from the

waiver “only the right to appeal from a sentence in excess of

the applicable advisory Guideline range that is established at

sentencing.” Id.

     McLaughlin argues that under the reservation clause, she

has a right to challenge any part of a sentence when the overall

sentence       represents       an      upward        departure       from       the    Guideline

range.    In    other       words,      she      argues       that     “a    sentence”            means

“anything in that sentence.”

     This reading focuses on one clause in the agreement at the

expense    of       the    agreement       in     its     entirety.         As    a    matter       of

tactics, the oversight is understandable, as the agreement in

its entirety contains a waiver provision that McLaughlin would

prefer to overlook.

                                                  4
      That waiver provision quite specifically waives the right

to appeal the sentence “on any ground, including any issues that

relate to the establishment of the advisory Guideline range.”

J.A. 42. McLaughlin’s appeal of the 3B1.1(a) enhancement is just

such an issue. It relates to the establishment of the advisory

Guideline range and therefore lies at the heart of the waiver

clause.

      McLaughlin’s      selective   reading      of    the   waiver    provision

would render this heart of it superfluous. Under McLaughlin’s

reading, the waiver with respect to appeals of sentences may as

well have read:

      To waive knowingly and expressly all rights, conferred
      by 18 U.S.C. § 3742, reserving only the right to
      appeal from a sentence in excess of the applicable
      advisory Guideline range that is established at
      sentencing.

The   language    “whatever    sentence     is     imposed    on   any    ground,

including any issues that relate to the establishment of the

advisory    Guideline      range”     is     conspicuously         absent        from

McLaughlin’s     interpretation.     But    “the      interpretation      of     plea

agreements is rooted in contract law.” United States v. Peglera,

33 F.3d 412, 413 (4th Cir. 1994). And “[c]ontract terms must be

construed   to   give    meaning    and    effect     to   every   part     of    the

contract.” Goodman v. Resolution Trust Corp., 7 F.3d 1123, 1127

(4th Cir. 1993). We therefore decline McLaughlin’s invitation to

“reduce[]” much of her waiver “to mere surplusage.” Id.

                                      5
      McLaughlin also argues that the plea agreement is at least

ambiguous and that ambiguity should be construed in her favor.

But the fact that parties in an adversary system unsurprisingly

argue for different interpretations of an agreement does not in

and   of   itself   render     an   agreement     ambiguous.      In   determining

whether an agreement is ambiguous, courts “examine the entire

contract,”      considering     “[p]articular       words . . .        not    as   if

isolated from the context, but in the light of the obligation as

a whole.” PCS Nitrogen Inc. v. Ashley II of Charleston LLC, 714

F.3d 161, 173 (4th Cir. 2013) (quoting William C. Atwater & Co.

v. Panama R.R. Co., 159 N.E. 418, 419 (N.Y. 1927)). “Form should

not   prevail    over   substance,    and     a   sensible    meaning    of    words

should be sought.” Id.

      Here, taken as a whole, the agreement makes good sense. It

allows challenges to upward departures from a Guideline range,

but not challenges to the establishment of a Guideline range.

McLaughlin was advised of this reading during her plea hearing

and yet raised no objection. The district court, moreover, did

not commit any error, much less plain error, in conveying this

understanding to McLaughlin in open court.

      McLaughlin    does     not,   for   whatever      reason,    challenge       her

sentence’s upward departure, which she is permitted to do, but

instead    challenges    the    establishment      of   her   Guideline       range,



                                          6
which she is forbidden to do. This has her agreement in reverse.

We therefore dismiss her appeal.

                                                       DISMISSED




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