                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 12-4882


UNITED STATES OF AMERICA,

                Plaintiff- Appellee,

          v.

LINDA ALLEN KNOX,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:10-cr-00086-MR-DLH-1)


Submitted:   June 27, 2013                  Decided:   July 18, 2013


Before WILKINSON, KING, and GREGORY, Circuit Judges.


Dismissed in part; affirmed in part by unpublished per curiam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


Christian E. Dysart, DYSART LAW, Raleigh, North Carolina, for
Appellant. Anne M. Tompkins, United States Attorney, Melissa L.
Rikard, Assistant United States Attorney, Charlotte, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Linda Allen Knox pled guilty to mail fraud and aiding

and    abetting      in   violation    of     18    U.S.C.A.       § 1341      (West    Supp.

2013), and 18 U.S.C. § 2 (2006), and was sentenced to a term of

thirty-three months’ imprisonment.                      Knox appeals her sentence,

contending       that     the   waiver      of      appeal       rights     in    her     plea

agreement is unenforceable because the government breached the

plea agreement by arguing at sentencing for a greater amount of

loss    than    that      stipulated     in       the    plea    agreement,       that     the

district court clearly erred in determining the amount of loss,

and    that    she    received    ineffective            assistance       of     counsel   in

connection with the plea negotiations.                          We affirm in part and

dismiss in part.

               This court “will not enforce an otherwise valid appeal

waiver against a defendant if the government breached the plea

agreement containing that waiver.”                      United States v. Cohen, 459

F.3d 490, 495 (4th Cir. 2006).                    “It is settled that a 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 Knox did not raise this issue in the district

court,    it    is    reviewed   for     plain          error.     Puckett        v.    United

States, 556 U.S. 129, 133-34 (2009).                         To prevail under this

standard, Knox must show not only that the government plainly

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breached the 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 affected the fairness,

integrity    or   public   reputation           of    the    judicial   proceedings.”

United States v. McQueen, 108 F.3d 64, 65-66 (4th Cir. 1997)

(internal quotation marks and alteration omitted); see United

States v. Dawson, 587 F.3d 640, 645 (4th Cir. 2009).                                 Plea

agreements are grounded in contract law, and both parties should

receive the benefit of their bargain.                       United States v. Chase,

466 F.3d 310, 314 (4th Cir. 2006).                    The government breaches the

plea agreement when a promise it made to induce the plea goes

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

            After    reviewing        the   record,         we   conclude     that   the

government did not breach the plea agreement, but argued that

the loss was within the range stipulated in the plea agreement.

The district court determined that the loss was an amount within

that range and ordered restitution in an amount lower than the

stipulated     amount.         Knox    acknowledges           that   her    waiver    of

appellate    rights      was   knowing          and    intelligent,     and    we    are

satisfied that the waiver is enforceable.                     Therefore, the waiver

bars consideration of the sentencing issues Knox seeks to raise.

            Claims of ineffective assistance of counsel generally

are not cognizable on direct appeal.                    United States v. Benton,

523 F.3d 424, 435 (4th Cir. 2008); United States v. King, 119

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F.3d 290, 295 (4th Cir. 1997).              Instead, to allow for adequate

development of the record, a defendant must bring her claims in

a 28 U.S.C.A. § 2255 (West Supp. 2013) motion.              King, 119 F.3d

at 295.        However, such claims will be entertained on direct

appeal    if    the   record    conclusively      establishes    ineffective

assistance.      United States v. Richardson, 195 F.3d 192, 198 (4th

Cir. 1999).       In this case, the record does not conclusively

demonstrate that Knox’s counsel was ineffective.

           We    therefore     affirm   Knox’s    conviction    and   dismiss

Knox’s appeal of her sentence.              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 IN PART;
                                                          AFFIRMED IN PART




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