# United States v. Brandon Tate

> Court of Appeals for the Fourth Circuit · January 11, 2017 · 845 F.3d 571

URL: https://www.frixlaw.com/law-library/cases/4115017

## Case

- **Full name:** UNITED STATES of America, Plaintiff-Appellee, v. Brandon TATE, Defendant-Appellant
- **Court:** Court of Appeals for the Fourth Circuit
- **Decided:** January 11, 2017
- **Citations:** 845 F.3d 571; 2017 U.S. App. LEXIS 500; 2017 WL 108009
- **Precedential status:** Published
- **Opinion:** Opinion by Floyd
- **Judges:** Gregory, Keenan, Floyd
- **Cited by:** 70 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4115017

## How later opinions describe it (automated extraction)

- discussing standard of review

## Opinion text

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4252

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

BRANDON TATE,

Defendant – Appellant.

Appeal 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)

Argued: October 28, 2016 Decided: January 11, 2017

Before GREGORY, Chief Judge, and KEENAN and FLOYD, Circuit
Judges.

Affirmed by published opinion. Judge Floyd wrote the opinion,
in which Chief Judge Gregory and Judge Keenan joined.

ARGUED: 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. ON BRIEF: Jill
Westmoreland Rose, United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
FLOYD, Circuit Judge:

Appellant 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.

I.

In a 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

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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.

A 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.

A 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.

Tate 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

3
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 months’ imprisonment.

At 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’ imprisonment.

Tate 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.

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II.

The 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.

Tate’s appeal waiver is generally valid. 1 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 waiver.

1A 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 valid.

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III.

We now 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 range.

Because 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.

Tate 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

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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. 1994).

In 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

legitimately exists.

In 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

7
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 plea agreement. 2

A.

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);

2 This holding should not be read to preclude claims of bad
faith or prosecutorial misconduct. No such claims have been
made in this case.

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Gall v. United States, 552 U.S. 38, 49 (2007). 3 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.

In the 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

3In 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 49.

9
recommend a sentence at the lowest end of the range found by the

court.

Additionally, 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.”

Based 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

district court.

B.

Second, 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.

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1992). These cases support the above interpretation of

“applicable guideline range.”

In 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

Guidelines. Id.

In 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

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on a proper application of the Guidelines, as the plea
in Bowden did.

Id.

Although 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.

C.

Third 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

12
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.’”

The 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.

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IV.

At 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.

As used 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

AFFIRMED.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4115017. Public record. Not legal advice.