IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-11642

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

CHARLES RAY FULMER,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 5:18-CR-34-1

Before HIGGINBOTHAM, JONES, and DUNCAN, Circuit Judges.

PER CURIAM:*

On May 29, 2018, Appellant Charles Ray Fulmer was charged in a 

superseding information with one count of attempting to transfer obscene 

material to a minor in violation of 18 U.S.C. § 1470. The next day, Fulmer pled

guilty pursuant to a written plea agreement in which he waived his right to 

appeal. At Fulmer’s sentencing, three of the victim’s family members 

addressed the court and asked that Fulmer be given the maximum statutory 

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

January 10, 2020

Lyle W. Cayce

Clerk

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2

sentence. Afterwards, the government presented argument, during which 

counsel made the following statement: 

As the Court is aware, Your Honor, the government 

entered into a plea agreement with Mr. Fulmer. I 

am—I believe I am ethically bound to not advocate for 

a variance or a departure, and I’ve represented to 

opposing counsel that I will not do that in court today. 

But the family has also asked me to put in context this

plea agreement and the full scope of the defendant’s 

behavior, and I also believe that I’m ethically required 

to do so and I owe it to the victim’s family. 

Fulmer was subsequently sentenced to the statutory maximum (120 months of 

imprisonment) and four years of supervised release.

Fulmer now appeals, arguing for the first time that the above-quoted 

statement proves the government agreed, as part of the plea agreement, not to 

seek an upward variance, and the government breached that agreement by 

putting on witnesses who asked for a maximum sentence. Based on the alleged 

breach, Fulmer contends his sentence should be vacated and the case 

remanded to a different district court judge for resentencing.1 We disagree and 

affirm.

Because Fulmer did not object to the Government’s alleged breach of the 

plea agreement, our review is for plain error. United States v. Casillas, 

853 F.3d 215, 217 (5th Cir. 2017). Under plain error review, a defendant must 

show a clear or obvious error that affected his substantial rights. Id. If that 

showing is made, this court may exercise its discretion to correct the error, 

provided the error “seriously affects the fairness, integrity or public reputation 

 

1 Although Fulmer waived his right to appeal in the plea agreement, an appeal waiver 

does not affect a defendant’s “ability to raise a breach argument because an alleged breach of 

a plea agreement may be raised despite a waiver provision.” United States v. Roberts, 

624 F.3d 241, 244 (5th Cir. 2010). Fulmer’s appeal is therefore properly before the court.

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of judicial proceedings.” Id. (quoting Puckett v. United States, 556 U.S. 129, 

135, 129 S. Ct. 1423, 1429 (2009)).

“In evaluating whether a plea agreement was breached, we apply 

general principles of contract law.” United States v. Hebron, 684 F.3d 554, 558 

(5th Cir. 2012). The court looks to the “language of the [plea agreement], 

unless ambiguous, to determine the intention of the parties.” United States v. 

Long, 722 F.3d 257, 262 (5th Cir. 2013) (quoting In re Conte, 206 F.3d 536, 538 

(5th Cir. 2000)). Thus, when a plea agreement is unambiguous, we “generally 

will not look beyond the four corners of the document.” Id. “The defendant 

bears the burden of demonstrating the underlying facts that establish breach 

by a preponderance of the evidence.” United States v. Roberts, 624 F.3d 241, 

246 (5th Cir. 2010). “If the Government breaches a plea agreement, the 

defendant is entitled to specific performance of the agreement with sentencing 

by a different judge.” United States v. Munoz, 408 F.3d 222, 226 (5th Cir. 

2005).

Neither party argues the plea agreement was ambiguous. Nor do the 

parties dispute that the plea agreement contained no promise not to seek an 

upward departure. The plea agreement did, however, contain a merger clause, 

confirming that it represented the complete agreement between Fulmer and 

the government.2 Fulmer confirmed this at the sentencing hearing, testifying 

that he had read the plea agreement, reviewed it with his attorney, was not 

 

2 The merger clause provided that

This document is a complete statement of the parties’ agreement 

and may not be modified unless the modification is in writing 

and signed by all parties. This agreement supersedes any and 

all other promises, representations, understandings, and 

agreements that are or were made between the parties at any 

time before the guilty plea is entered in court. No promises or 

representations have been made by the United States except as 

set forth in writing in this plea agreement.

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promised anything to convince him to plead guilty outside of what was 

contained in the plea agreement, and all the terms of his agreement with the 

government were set forth in the plea agreement. Based on the four corners of 

the agreement, therefore, the government was not contractually prohibited 

from seeking an upward variance and could not have breached the plea 

agreement by doing so.

This would seem to be the end of the matter. But, as Fulmer points out, 

this court has previously declined to limit its breach inquiry to the terms of a 

plea agreement when evidence indicates the government made an extrinsic 

promise that the defendant reasonably relied on in pleading guilty. See, e.g.,

United States v. Melton, 930 F.2d 1096, 1098–99 (5th Cir. 1991). Melton dealt 

with a plea agreement that was transmitted with a cover letter from the 

prosecutor stating that the government would recommend a downward 

departure based on the defendant’s “full and complete debriefing and 

substantial assistance to the government.” Id. at 1098. The promise contained 

in the cover letter was not included in the plea agreement. Id. Although the 

defendant ultimately pled guilty, the government failed to seek a downward 

departure at sentencing, and on appeal, the defendant argued the 

government’s failure to do so constituted a breach of the plea agreement. Id. 

In considering the issue, this court declined to ignore the cover letter, 

reasoning that “the government may neither misrepresent its intentions nor 

renege on representations reasonably relied and acted upon by defendants and 

their counsel in instances such as is here presented.” Id.

Compare Melton to Long, where the prosecutor had emailed defense 

counsel before the defendant’s guilty plea and promised not to seek a 

leader/organizer enhancement at sentencing. Long, 722 F.3d at 259. As in 

Melton, this promise was not contained in the plea agreement and was not 

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complied with at sentencing. Id. at 261–62. However, Long distinguished the 

case from Melton, finding that “the e-mail exchange was not attached to the 

plea agreement, was completed weeks prior to [the defendant’s] guilty plea, 

and copies thereof were not transmitted contemporaneously with the plea.” Id. 

at 263–64. Pointing to the defendant’s declarations during the plea colloquy 

that no extrinsic promises induced his guilty plea, we concluded that “reliance 

on the e-mail exchange would be unreasonable in light of the plea agreement’s 

merger clause stating that the written plea agreement constitutes the complete 

agreement among the Government, [the defendant], and [the defendant’s] 

counsel.” Id. at 264.

This case is even weaker than the facts in Long. Assuming the 

government promised not to seek an upward variance, the record is unclear as 

to when the promise was made. Nothing in the record indicates how the 

promise was conveyed, what its terms were, or whether Fulmer relied on it in 

pleading guilty. Unlike Melton and Long, where the documents containing the 

promises were part of the record, we have before us only the government’s 

allusion to some promise during the sentencing colloquy. Further, as in Long, 

the written plea agreement included a merger clause, and Fulmer 

unequivocally represented to the district court before pleading guilty that he 

had not relied on any promises outside of those contained in the plea 

agreement. See Blackledge v. Allison, 431 U.S. 63, 74, 97 S. Ct. 1621, 1629 

(1977) (“Solemn declarations in open court carry a strong presumption of 

verity.”). Indeed, on appeal, Fulmer does not even argue he relied on the 

government’s promise. Therefore, even if the government promised not to seek 

an upward variance, it is unreasonable to conclude that Fulmer relied on that 

promise in pleading guilty.

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For these reasons, the government did not breach the plea agreement, 

and the judgement of the district court is AFFIRMED.

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