UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 09-4569

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

DERRICK SCOTT AYLOR,

Defendant – Appellant.

No. 09-4577

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

DERRICK SCOTT AYLOR,

Defendant – Appellant.

Appeals from the United States District Court for the District 

of Maryland, at Greenbelt. Peter J. Messitte, Senior District 

Judge. (8:09-cr-00021-PJM-1; 8:08-cr-00489-PJM-1)

Submitted: April 1, 2010 Decided: April 16, 2010

Before WILKINSON, MOTZ, and AGEE, Circuit Judges.
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Dismissed in part; affirmed in part by unpublished per curiam 

opinion.

A.D. Martin, LAW OFFICE OF ANTHONY D. MARTIN, Greenbelt, 

Maryland, for Appellant. Jonathan C. Su, Assistant United 

States Attorney, Greenbelt, Maryland, for Appellee. 

Unpublished opinions are not binding precedent in this circuit.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

Derrick Scott Aylor pled guilty, pursuant to a written 

plea agreement, to two counts of bank robbery, in violation of 

18 U.S.C. § 2113(a), (f) (2006). The district court calculated 

Aylor’s total offense level under the U.S. Sentencing Guidelines 

Manual (2008) at 21 and his criminal history in Category IV, 

resulting in a Guidelines imprisonment range of 57 to 71 months 

on each count. The district court sentenced Aylor to 71 months’

imprisonment. Aylor appeals and asserts on appeal that his 

guilty plea and sentence are void because the Government 

breached the plea agreement by failing to afford him an 

opportunity to participate in a presentence debriefing 

interview. The Government moves to dismiss the appeal, arguing 

that Aylor’s knowing and voluntary waiver of his right to appeal

his sentence bars this appeal. We dismiss in part and affirm in 

part. 

A defendant may waive the right to appeal if that 

waiver is knowing and intelligent. United States v. AmayaPortillo, 423 F.3d 427, 430 (4th Cir. 2005). To determine 

whether a waiver is knowing and intelligent, this court examines 

“the totality of the circumstances, including the experience and 

conduct of the accused, as well as the accused’s educational 

background and familiarity with the terms of the plea 

agreement.” United States v. General, 278 F.3d 389, 400 
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(4th Cir. 2002) (internal quotation marks omitted). Generally, 

if the district court fully questions a defendant at the Fed. R. 

Crim. P. 11 proceeding regarding the waiver of his right to 

appeal, the waiver is both valid and enforceable. See United 

States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005). However, 

an appeal waiver does not bar the appeal of a sentence imposed 

in excess of the statutory maximum or a challenge to the 

validity of a guilty plea. See General, 278 F.3d at 399 n.4. 

Nor does it bar an appeal raising issues not within the scope of 

the waiver. See United States v. Blick, 408 F.3d 162, 168

(4th Cir. 2005). 

Our review of the record leads us to conclude that

Aylor knowingly and voluntarily waived the right to appeal his 

sentence*

Aylor claims that the appeal waiver is not enforceable 

because the Government breached the plea agreement. This court 

“will not enforce an otherwise valid appeal waiver against a 

defendant if the [G]overnment breached the plea agreement 

containing that waiver.” United States v. Cohen, 459 F.3d 490, 

and that the district court fully questioned Aylor 

regarding that waiver. Accordingly, the waiver is valid. 

 * Pursuant to the plea agreement’s appeal waiver, Aylor 

agreed to waive his right to appeal from any sentence within or 

below the advisory Guidelines range resulting from an adjusted 

offense level of 21. 
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495 (4th Cir. 2006). The Government breaches the plea agreement 

when a promise it made to induce the plea goes unfulfilled. See

Santobello v. New York, 404 U.S. 257, 262 (1971). Because Aylor 

did not raise this issue in the district court, we review it for 

plain error. See Puckett v. United States, 129 S. Ct. 1423, 

1428 (2009). 

Although acknowledging that the written plea agreement 

contains no provision obligating the Government to afford him 

the opportunity to participate in a presentence debriefing 

interview, Aylor claims that the agreement was modified by 

statements made during the guilty plea and sentencing hearings. 

As a general rule, “integrated written plea agreements are not 

open to oral supplementation.” United States v. Martin, 25 F.3d 

211, 217 n.4 (4th Cir. 1994). However, this court has 

recognized exceptions to this rule in particular circumstances 

where the Government has made affirmative representations in 

open court. See United States v. Wood, 378 F.3d 342, 349-50 

(4th Cir. 2004); Martin, 25 F.3d at 214-17. 

After review of the record, we conclude that the plea 

agreement was not orally supplemented to include a provision 

requiring the Government to afford Aylor the opportunity to 

participate in a presentence debriefing interview. Accordingly, 

the Government did not breach the plea agreement by failing to 

afford Aylor such an interview. Aylor’s claim of breach 
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therefore fails, and the plea agreement and its appeal waiver 

are enforceable against Aylor. Because Aylor’s challenge to his 

sentence falls within the waiver’s scope, we grant the 

Government’s motion to dismiss in part. Although Aylor’s appeal 

waiver insulates his sentence from appellate review, the waiver 

does not preclude our consideration of any challenges to the 

validity of Aylor’s conviction. Consequently, we deny the 

motion to dismiss in part. 

Turning, then, to Aylor’s conviction, Aylor claims on 

appeal that his guilty plea is void as a result of the 

Government’s breach of the plea agreement. While this claim is 

not barred by the appeal waiver, we conclude it is without 

merit. Accordingly, we affirm Aylor’s conviction and dismiss 

the appeal of his sentence. We dispense with oral argument

because the facts and legal contentions are adequately expressed 

in the materials before the court and argument would not aid the 

decisional process. 

DISMISSED IN PART;

AFFIRMED IN PART