                                   UNPUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                                     No. 17-4779


UNITED STATES OF AMERICA,

                   Plaintiff - Appellee,

             v.

JUAN JOSUE ANDRADE GUZMAN,

                   Defendant - Appellant.



                                     No. 17-4780


UNITED STATES OF AMERICA,

                   Plaintiff - Appellee,

             v.

JUAN JOSUE ANDRADE GUZMAN, a/k/a Angel Rodriguez,

                   Defendant - Appellant.



Appeals from the United States District Court for the Eastern District of Virginia, at
Alexandria. Liam O’Grady, District Judge. (1:17-cr-00153-LO-1; 1:17-cr-00261- LO-1)


Submitted: June 29, 2018                                     Decided: August 1, 2018
Before MOTZ, AGEE, and HARRIS, Circuit Judges.


Dismissed in part, affirmed in part by unpublished per curiam opinion.


Geremy C. Kamens, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Alexandria, Virginia, for Appellant. Tracy Doherty-McCormick, Acting
United States Attorney, Kyle P. Reynolds, William G. Clayman, Special Assistant United
States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                            2
PER CURIAM:

       Juan Josue Andrade Guzman appeals from concurrent 18-month sentences

imposed for failing to update his sex offender registry under the Sex Offender

Registration and Notification Act (SORNA), in violation of 18 U.S.C. § 2250(a) (2012)

(the “SORNA offense”) (No. 17-4780) and illegally reentering the United States after

previous removal subsequent to a conviction for an aggravated felony, in violation of 8

U.S.C. § 1326(a), (b)(2) (2012) (the “illegal reentry offense”) (No. 17-4779). Although

indicted separately, these cases were consolidated after separate guilty plea hearings for a

single sentencing proceeding in the district court and continue as consolidated cases on

appeal. Guzman entered into a plea agreement on the SORNA offense that included a

waiver of appellate rights and pleaded guilty to the illegal reentry offense without a plea

agreement. We dismiss in part and affirm in part.

       Guzman argues that the district court erred in concluding that his two offenses did

not meet the requirements to group the offenses under U.S. Sentencing Guidelines

Manual § 3D1.2 (2016), which would have resulted in Guzman’s base offense level being

no greater than if he had been convicted under the illegal reentry offense only. Guzman

advocates vacatur of both concurrent sentences.       However, Guzman voluntarily and

validly waived his right to appeal the sentence imposed for the SORNA offense;

therefore we dismiss that appeal.

       The Government argues that Guzman’s appeal of the concurrent illegal reentry

sentence is also barred because it implicates the bargaining concessions given by the

Government in the SORNA plea agreement. Guzman contends that the illegal reentry

                                             3
offense level drove the Guidelines range because it had the higher base offense level and,

therefore, raises sentencing issues apart from those contemplated in the plea agreement.

See USSG § 3D1.4 (providing that the offense level applicable to multiple counts is

determined by the group with the highest level). Further, Guzman argues that it is

unclear whether the SORNA plea agreement foreclosed review of the illegal reentry

sentence. He contends that, at best, it is ambiguous. We concur.

       Plea agreements are grounded in contract law, and both parties should receive the

benefit of their bargain. United States v. Dawson, 587 F.3d 640, 645 (4th Cir. 2009).

“[B]oth constitutional and supervisory concerns require holding the Government to a

greater degree of responsibility than the defendant for imprecisions or ambiguities in plea

agreements.” United States v. Barefoot, 754 F.3d 226, 243 (4th Cir. 2014) (internal

quotation marks and ellipsis omitted). Where a plea agreement is ambiguous in its terms,

the terms must be construed against the Government. United States v. Harvey, 791 F.2d

294, 303 (4th Cir. 1986). Whether a written plea agreement is ambiguous on its face is a

matter ordinarily decided by a court as a matter of law. United States v. Jordan, 509 F.3d

191, 195 (4th Cir. 2007). We conclude that, while the intent of the SORNA offense plea

was to consider the illegal reentry and SORNA sentences as one proceeding—a benefit to

Guzman, whether Guzman retained the right to appeal the illegal reentry sentence

separately is less than clear. For that reason, we construe the ambiguity against the

Government and will review the illegal reentry sentence. See Harvey, 791 F.2d at 303.

       Under harmless error review, the Government has the burden of showing that an

error did not affect Guzman’s substantial rights. See United States v. Sullivan, 455 F.3d

                                            4
248, 265-66 (4th Cir. 2006). We have reviewed Guzman’s claim that his offenses should

have been grouped under USSG § 3D1.2 and conclude that no error affecting Guzman’s

substantial rights has been made, even in the event of error pertaining to grouping of the

offenses under USSG § 3D1.2. See United States v. Ellis, 326 F.3d 493, 599-600 (4th

Cir. 2003) (holding that sentence exceeding statutory maximum by twenty years did not

affect substantial rights because defendant received equal or longer concurrent sentences

on other counts); United States v. Burns, 298 F.3d 523, 544-45 (6th Cir. 2002) (holding

that sentencing error did not affect defendants’ substantial rights because error did not

result in longer term of imprisonment). Here, Guzman was sentenced to 18 months’

imprisonment on each of the two counts of conviction, to be served concurrently.       His

appellate waiver bars him from challenging the length of the sentence on the SORNA

count. Even assuming error occurred pertaining to the illegal reentry sentence, that error

is immaterial, as any error did not create a longer term of imprisonment. As such, it did

not affect the outcome of Guzman’s sentencing proceedings. See United States v. Stokes,

261 F.3d 496, 499 (4th Cir. 2001). Thus, the asserted grouping error would be harmless

because the error could not affect Guzman’s substantial rights.

       Accordingly, we dismiss the appeal in No. 17-4780 as barred by the appellate

waiver and affirm the sentence in No. 17-4779. 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 IN PART;
                                                                    AFFIRMED IN PART


                                            5
