                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 17-4727


UNITED STATES OF AMERICA,

                    Plaintiff – Appellee,

             v.

RICK JAMES ANDERSON, a/k/a Lil Rick,

                    Defendant – Appellant.


Appeal from the United States District Court for the District of South Carolina, at
Columbia. Terry L. Wooten, Chief District Judge. (3:16-cr-00315-TLW-1)


Argued: May 9, 2019                                               Decided: June 6, 2019


Before MOTZ, AGEE, and HARRIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED:       Kimberly Harvey Albro, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Columbia, South Carolina, for Appellant. Alyssa Leigh Richardson,
OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for
Appellee. ON BRIEF: Sherri A. Lydon, United States Attorney, William K.
Witherspoon, Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Columbia, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       Rick Anderson appeals from his conviction on three federal counts relating to

controlled substances and firearms. For the reasons that follow, we affirm.



                                            I.

       On April 19, 2016, the government charged Anderson in a nine-count indictment

with various offenses, stemming from a series of controlled buys conducted by law

enforcement in which Anderson sold small quantities of cocaine base and several

firearms to a confidential informant. A total of 4.88 grams of cocaine base was involved

in these controlled buys.

       During plea negotiations, the government additionally provided Anderson with the

proffer statement of a cooperating defendant, Jarvis Craft, and the “debriefing statement”

of a second cooperating defendant, Tracy Todd. In the first statement, Craft estimated

that he personally sold Anderson approximately 112 grams of cocaine base and 175

grams of cocaine sometime in 2015; in the second, Todd stated that he “was being

supplied” undisclosed quantities of cocaine base and cocaine from Anderson and that he

wished to “cooperate fully.” Joint 28(j) Letter at 16, ECF No. 50 (May 22, 2019).

       With this information in hand, on September 29, 2016, Anderson pled guilty

pursuant to a plea agreement to the first three counts of the indictment: possession with

intent to distribute cocaine base, 21 U.S.C. § 841(a)(1); using and carrying a firearm in

relation to a drug trafficking crime, 18 U.S.C. § 924(c)(1); and possession of a firearm by

a felon, id. § 922(g)(1).

                                            2
       The government then submitted Craft’s proffer statement to the Probation Office,

as well as a new and detailed proffer statement from Todd in which he claimed to have

witnessed Anderson purchase approximately 112 grams of cocaine base at various times

after 2013, as evidence of “relevant conduct” under § 1B1.3 of the U.S. Sentencing

Guidelines. Taken together with the conduct directly charged in the indictment, the

government urged, and the Probation Office recommended in the Presentence

Investigation Report (PSR), that Anderson be held responsible for 228.88 grams of

cocaine base and 175 grams of cocaine for the purpose of calculating his guideline range

under § 2D1.1(c).

       In the months between his plea and sentence, Anderson wrote several pro se letters

to the district court challenging the government’s evidence as to the drug quantity.

Neither Anderson nor his lawyer suggested that the government breached its obligations

under the plea agreement.

       The parties first appeared for sentencing on January 18, 2017. After Anderson

reiterated his desire to file formal objections to the drug weights, however, the district

court continued the proceeding to allow Anderson’s lawyer to file formal objections.

Although counsel stated that he would file an objection “hopefully this afternoon,” he

never did so.

       After a delay in the proceedings to ensure Anderson’s competency, the district

court resumed the sentencing hearing on November 14, 2017. Anderson affirmed that he

had received sufficient time to review his PSR, that he was prepared to proceed, and that

he had no further objections. The court then found the applicable guideline range to be

                                            3
110–137 months in prison on counts one and three, with a statutorily mandated 60-month

consecutive sentence on count two.       Anderson did not object to any of the court’s

findings. The court imposed a within-guideline sentence of 175 months in prison.



                                             II.

       On appeal, Anderson raises three claims.

       First, he contends that the government breached its implied duty of good faith and

fair dealing by failing to disclose material information — namely, Todd’s proffer

statement — prior to entry of the plea agreement. 1 Because Anderson did not raise this

issue before the district court, we review for plain error. United States v. Edgell, 914

F.3d 281, 286 (4th Cir. 2019). “Under that standard, [Anderson] must show that the

government plainly breached its plea agreement with him and that the breach both

affected his substantial rights and called into question the fairness, integrity, or public

reputation of judicial proceedings.” Id. at 286–87. 2



       1
         Although Anderson initially contended that the government had not disclosed
either of Craft or Todd’s proffer statements during plea negotiations, the parties now
agree that the government disclosed Craft’s statement on July 13, 2016, before entering
the plea, but did not disclose Todd’s statement until October 21, 2016, a month after
Anderson’s September plea. Joint 28(j) Letter at 1–2.
       2
         To the extent Anderson seeks to directly challenge the drug weights attributed to
him as relevant conduct, he has waived any such challenge by identifying the issue and
then explicitly withdrawing his objection. See United States v. Robinson, 744 F.3d 293,
298 (4th Cir. 2014). Because Anderson did not argue before the district court that the
government breached the plea agreement, however, that claim is not waived, and we
review it for plain error. Id.

                                             4
       Of course, it is beyond dispute that “[p]lea agreements are grounded in contract

law, and both parties to a plea agreement should receive the benefit of their bargain.”

United States v. Tate, 845 F.3d 571, 575 (4th Cir. 2017). Plea agreements, like all

contracts, contain an implied duty of good faith and fair dealing in contract performance.

See, e.g., United States v. Murray, 897 F.3d 298, 305 (D.C. Cir. 2018); United States v.

Frazier, 340 F.3d 5, 11 (1st Cir. 2003). But Anderson has not pointed to any case even

considering whether the government breached this duty on facts like those present here.

To be sure, the government’s conduct in this case may not constitute best practices. See

United States v. Fischer, 905 F.2d 140, 142 (7th Cir. 1990); see also U.S.S.G. § 6B1.2

cmt. Indeed, counsel for the government conceded at oral argument that intentionally

withholding material information during plea negotiations to induce a plea would render

any agreement void. See Restatement (Second) of Contracts §§ 161, 164. But Anderson

expressly disclaimed any argument that his plea agreement is voidable due to such

misrepresentation or fraud in its formation; instead, he challenges only the government’s

performance. For all of these reasons, even assuming an error occurred, we cannot say

that it was plain. 3

       Second, Anderson contends that he received ineffective assistance of counsel

before the district court, a question we review de novo. United States v. Faulls, 821 F.3d


       3
         The government has also moved to dismiss Anderson’s claim as barred by his
appeal waiver. “However, a defendant’s waiver of appellate rights cannot foreclose an
argument that the government breached its obligations under the plea agreement.” Tate,
845 F.3d at 574 (internal quotation marks and alterations omitted). Accordingly, we deny
that motion.

                                            5
502, 507 (4th Cir. 2016). Because ineffectiveness is not conclusively established on the

face of the record, we conclude that Anderson’s claim must be raised, if at all, in a

28 U.S.C. § 2255 motion. See United States v. Baptiste, 596 F.3d 214, 216 n.1 (4th Cir.

2010).

         Finally, citing Federal Rule of Criminal Procedure 32(e)(2), Anderson claims that

the district court erred in declining to permit him to retain a copy of his PSR while

incarcerated before his sentencing. Anderson has cited no case in support of his position

that the Rules grant him such a right, but even assuming one exists, Anderson conceded

at his final sentencing hearing that he had received enough time to review the PSR and

had no objections. Accordingly, he cannot demonstrate any prejudice in this case, and

any violation of Rule 32(e)(2) would not warrant reversal. See United States v. Marrero,

651 F.3d 453, 473 (6th Cir. 2011) (reviewing violation of Rule 32(e)(2) for harmless

error and finding no prejudice).



                                               III.

         For the reasons stated, the judgment of the district court is

                                                                             AFFIRMED.




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