January 11, 2017
UNITED STATES OF AMERICA, Plaintiff - Appellee,
BRANDON TATE, Defendant-Appellant.
Argued: October 28, 2016
from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., District Judge. (3:13-cr-00296-RJC-1)
by published opinion. Judge Floyd wrote the opinion, in which
Chief Judge Gregory and Judge Keenan joined.
Roderick Morris Wright, Jr., WRIGHT LAW FIRM OF CHARLOTTE,
PLLC, Charlotte, North Carolina, for Appellant.
Anthony Joseph Enright, OFFICE OF THE UNITED STATES ATTORNEY,
Charlotte, North Carolina, for Appellee.
Westmoreland Rose, United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Charlotte, North Carolina, for
GREGORY, Chief Judge, and KEENAN and FLOYD, Circuit Judges.
Brandon Tate signed a plea agreement in which the government
agreed to seek a sentence at the lowest end of the
"applicable guideline range." At sentencing, the
government recommended a sentence at the lowest end of the
guideline range found by the district court. Tate now argues
that in doing so, the government breached the plea agreement.
Tate contends that the government was actually obligated to
recommend a sentence at the lowest end of the
correct guideline range, which, in his view, was
lower than the range found by the court. We disagree, and
hold that in this case, the phrase "applicable guideline
range" only obligated the government to recommend a
sentence at the lowest end of the guideline range found by
the district court. Because the government fulfilled this
obligation, it did not breach the plea agreement.
Accordingly, we affirm.
written plea agreement, Tate agreed to plead guilty to
possession with intent to distribute and distribution of
cocaine base, in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(C) (2012). The plea agreement stated that the
government would "seek a sentence at the lowest end of
and either party may seek a departure or variance from the
'applicable guideline range.' (U.S.S.G. §
5C1.1)." J.A. 74. Additionally, Tate agreed to waive all
"rights to contest the conviction except for: (1) claims
of ineffective assistance of counsel or (2) prosecutorial
misconduct." J.A. 77. Tate also agreed to waive
"all rights conferred by 18 U.S.C. § 3742 or
otherwise to appeal whatever sentence is imposed with the two
exceptions set forth above." Id.
magistrate judge then held a hearing pursuant to Federal Rule
of Criminal Procedure 11. At the hearing, Tate consented to
plead guilty, and the magistrate judge established Tate's
competence to plead guilty and his understanding of the terms
of his plea agreement.
presentence report (PSR) and, later, a revised PSR were then
prepared. The revised PSR calculated a base offense level of
24 under the Sentencing Guidelines. Tate then received a
three-level reduction for acceptance of responsibility, which
resulted in a total offense level of 21. The revised PSR then
assigned Tate seven criminal history points and calculated
his criminal history as Category IV. This criminal history
category and the total offense level of 21 resulted in a
guideline range of 57 to 71 months' imprisonment.
objected to the revised PSR's assignment of three
criminal history points for his four 2004 North Carolina
state convictions for common law robbery, robbery with a
dangerous weapon, and attempted robbery with a dangerous
weapon. Tate claimed that those convictions should not have
been the basis for additional points under the Guidelines
because they were part of a consolidated sentence. He argued
that his guideline range should have actually been 46 to 57
sentencing in March 2015, the district court adopted the
magistrate judge's finding that Tate's guilty plea
was knowingly and voluntarily made, and found there was a
factual basis to support the entry of the plea. The district
court overruled Tate's objections to the revised
PSR's assignment of criminal history points, and adopted
the revised PSR's calculation of the guideline range of
57 to 71 months' imprisonment. The government then
recommended a sentence of 57 months, and stated that it was
doing so in compliance with the plea agreement. The
government also stated that Tate had been making good use of
his time in prison, and that this boded well for his future.
The district court then sentenced Tate to 57 months'
noted a timely appeal of his sentence, claiming that the
government's sentencing recommendation breached the plea
agreement. The government then moved to dismiss the appeal,
arguing that the appeal waiver in Tate's plea agreement
bars Tate's claim.
first issue, raised in the government's motion to
dismiss, is whether Tate's appeal waiver bars this claim.
In the appeal waiver, Tate waived all rights to appeal his
conviction and his sentence, except for claims of ineffective
assistance of counsel and prosecutorial misconduct.
appeal waiver is generally valid. However, "[a] defendant's waiver
of appellate rights cannot foreclose an argument that the
government breached its obligations under the plea
agreement." United States v. Dawson, 587 F.3d
640, 644 n.4 (4th Cir. 2006) (citing United States v.
Cohen, 459 F.3d 490, 495 (4th Cir. 2006)). Here, Tate
argues that the government breached the plea agreement. This
Court may review that claim; it is not barred by the appeal
turn to the main issue in this case: whether or not the
government breached the plea agreement. In the plea
agreement, the government agreed to seek a sentence at the
lowest end of the "applicable guideline range." The
government contends that this provision obligated it to
recommend a sentence at the lowest end of the guideline range
found by the district court. Tate argues that the government
was not permitted to rely on the range found by the district
court, but was instead obligated to recommend an even lower
sentence, based on what he alleges is the correct guideline
Tate did not raise this issue below, we review his claim for
plain error. Fed. R. Crim. P. 52(b); Puckett v. United
States, 556 U.S. 129, 135 (2009). Plain error analysis
has four prongs: (1) there must be an error; (2) the error
must be plain; (3) the appellant's "substantial
rights" must be affected by the error; and (4) the error
must seriously affect "the fairness, integrity or public
reputation of judicial proceedings." Puckett,
556 U.S. at 135 (internal quotation mark omitted). To
prevail, Tate would need to prove all four prongs; however,
Tate's appeal fails on the first prong, error.
alleges that the government breached the plea agreement. Plea
agreements are grounded in contract law, and both parties to
a plea agreement should receive the benefit of their bargain.
Dawson, 587 F.3d at 645. The government breaches a
plea agreement when a promise it made to induce the plea goes
unfulfilled. Santobello v. New York, 404 U.S. 257,
262 (1971). However, "[a] central tenet of contract law
is that no party is obligated to provide more than is
specified in the agreement itself. Accordingly, in enforcing
plea agreements, the government is held only to those
promises that it actually made to the defendant."
United States v. Peglera, 33 F.3d 412, 413 (4th Cir.
determining what promises the government made, we read
"a plea agreement's plain language in its ordinary
sense." United States v. Jordan, 509 F.3d 191,
195 (4th Cir. 2007) (internal quotation marks omitted).
Moreover, any ambiguities in a plea agreement are construed
against the government as its drafter. United States v.
Barefoot, 754 F.3d 226, 246 (4th Cir. 2014). Whether a
plea agreement is ambiguous on its face is a question of law
to be resolved by the courts, Jordan, 509 F.3d at
195, and we will not create an ambiguity where none
determining whether the government breached the plea
agreement in this case, we will assume arguendo that
the lower guideline range proposed by Tate of 46 to 57 months
was the correct guideline range, and that the range found by
the district court was incorrect. Notably, Tate has waived
his right to appeal the court's guideline range
determination. The only question here is what the
government was required to do under the plea
agreement. The plea agreement stated that the government
would seek a sentence at the lowest end of the
"applicable guideline range." We hold that the
"applicable guideline range" means the guideline
range found by the district court, and that, therefore, the
government's sentencing recommendation complied with the
First, the natural reading of the phrase "applicable
guideline range" is the guideline range found by the
district court, because it is clearly the district court that
is assigned the task of determining the "applicable
guideline range." The Supreme Court has consistently
held that sentencing in federal district courts is to proceed
as follows: First, the district court must determine
"the applicable [g]uidelines range."
Molina-Martinez v. United States, 136 S.Ct. 1338,
1342 (2016); see also Peugh v. United States, 133
S.Ct. 2072, 2080 (2013); Gall v. United States, 552
U.S. 38, 49 (2007). Next, once the
district court determines this range, the government and the
defendant present their arguments regarding what the sentence
should be. Peugh, 133 S.Ct. at 2080. The court
considers these arguments, along with the factors set forth
in 18 U.S.C. § 3553(a). Id. Then, the court
determines the defendant's sentence, and states its
reasons for this sentence on the record. Id.
process described above, it is plainly the task of the
district court to determine the "applicable guideline
range, " and it is this range that forms the basis of
the rest of the sentencing hearing. See Gall, 552
U.S. at 49 ("[T]he Guidelines should be the starting
point and the initial benchmark.") Thus, in the context
of a federal sentencing proceeding, where the district court
first determines the "applicable guideline range"
and the government then has an opportunity to make a
sentencing recommendation, it is clear that a promise by the
government to recommend a sentence at the lowest end of the
"applicable guideline range" is a promise to
recommend a sentence at the lowest end of the range found by
the Guidelines themselves state "[t]he court shall
determine the kinds of sentence and the guideline range as
set forth in the guidelines, " and instruct that the
court does so in accordance with U.S.S.G. 1B1.2, which is
entitled "Applicable Guidelines." U.S.S.G.
1B1.1(a)(1). The Guidelines as a whole are written as
instructions to the court on how to determine the
applicable guideline range. It is clear that it is the
district court, and no other entity, that traditionally
determines the "applicable guideline range."
on the above, we hold that the phrase "applicable
guideline range, " as used in the plea agreement here,
unambiguously refers to the guideline range found by the
although this Court has not dealt with this exact issue
before, it has previously considered similar arguments made
by criminal defendants claiming that the imposition of
incorrect sentences rendered their appeal waivers invalid.
See United States v. Brown, 232 F.3d 399, 404 (4th
Cir. 2000); United States v. Bowden, 975 F.2d 1080,
1081 n.1 (4th Cir. 1992). These cases support the above
interpretation of "applicable guideline range."
Bowden, this Court was presented with an appeal
waiver that read, "By this agreement Defendant waives
any appeal and the right to exercise any post-conviction
rights . . . if the sentence imposed herein is
within the [Sentencing Guidelines.]" 975 F.2d at 1081
n.1 (emphasis added). In that case, we held that the waiver
preserved the defendant's right to challenge his sentence
as being outside of the Guidelines, because the waiver was
expressly conditioned on the sentence being within the
contrast, in Brown, the defendant had signed a plea
agreement with a waiver of all rights to appeal his sentence;
however, a different part of the plea agreement stated that
"[t]he Defendant understands . . . [t]hat sentencing
will be in accordance with the United States Sentencing
Guidelines." 232 F.3d at 404 (alterations in original).
There, this Court held that the defendant had waived all
rights to contest his sentence, and that the other statement
that his sentence would be "in accordance with" the
Guidelines did not qualify or change this unconditional
waiver. Id. We explained:
A common sense reading of [the relevant provision] indicates
that its purpose is merely to inform Brown that his sentence
will be calculated using the Sentencing Guidelines. The
paragraph does not, in any way, condition the waiver of
Brown's right to appeal on a proper application of the
Guidelines, as the plea in Bowden did.
Bowden and Brown address the validity of
appeal waivers, rather than the government-breach argument
presented here, they are still instructive. Read together,
these cases indicate that a provision in a plea agreement
that is explicitly conditioned on a correct sentence under
the Guidelines will be honored, but a mere reference to the
Guidelines is not sufficient to create such a condition. The
provision at issue here falls into the latter category.
Moreover, Brown counsels that common sense should be
used when interpreting such provisions. Here, when the
process and structure of sentencing are taken into account,
common sense dictates that "applicable guideline
range" signifies the range found by the district court.
and finally, Tate's proposed interpretation of the plea
agreement is logically untenable. Tate contends that the term
"applicable guideline range" should be read to mean
the correct guideline range--which in this case we
assume to be 46 to 57 months. Tate is thus arguing that the
only way the government could have complied with the plea
agreement would have been through a recommendation of a 46
month sentence. Under Tate's view, any other
recommendation violates the plea agreement. However, although
it was entirely possible for Tate's attorney to calculate
the guideline range and propose that the specific figure of
46 months be included in the agreement when it was made, the
agreement does not say 46 months. No specific number of
months is included. Rather, the agreement uses only the
indeterminate phrase, "the lowest end of . . . the
'applicable guideline range.'"
fact that the two parties did not specify a number of months
in the agreement, even though it was completely possible for
them to do so, and instead merely agreed to the lowest end of
a yet-to-be-determined "range, " manifestly implies
that they anticipated that a third party (i.e., the district
court) was going to determine that range. If the two parties
had actually agreed to 46 months, there is no conceivable
reason why they would forego memorializing this agreement,
and instead opt for the indeterminate "the lowest end of
. . . the 'applicable guideline range'" language
contained in the plea agreement. It is well established that
the government is not "obligated to provide more than is
specified in the agreement itself." Peglera, 33
F.3d at 413. Tate's interpretation of the plea agreement
would violate this rule.
bottom, Tate's true grievance is with the district
court's application of the Guidelines in determining the
guideline range. However, Tate has waived the right to
present this issue on appeal. He cannot now convert this
claim of sentencing error into a claim of breach by the
government when the government has complied fully with the
terms of the plea agreement.
in the plea agreement here, the phrase "applicable
guideline range" unambiguously means the guideline range
determined by the district court. The government complied
with the plea agreement when it made its sentencing
recommendation based on the district court's guideline
range calculation. Therefore, an error did not occur, and the
plain error standard has not been met. Accordingly, the
judgment below is
 A criminal defendant may waive the
right to appeal if that waiver is knowing and voluntary.
United States v. Davis, 689 F.3d 349, 354 (4th Cir.
2012) (per curiam). "Generally, if a district court
questions a defendant regarding the waiver of appellate
rights during the Rule 11 colloquy and the record indicates
that the defendant understood the full significance of the
waiver, the waiver is valid." United States v.
Thornsbury, 670 F.3d 532, 537 (4th Cir. 2012). Here,
Tate confirmed at his Rule 11 hearing that he agreed with the
appeal waiver and understood that he was waiving his right to
appeal his conviction and sentence. His waiver is therefore
 This holding should not be read to
preclude claims of bad faith or prosecutorial misconduct. No
such claims have been made in this case.
 In all three cited cases, the Court
has used the specific phrase "applicable [g]uidelines
range" to describe the range determined by the district
court. Molina-Martinez, 136 S.Ct. at 1342;
Peugh, 133 S.Ct. at 2080; Gall, 552 U.S. at