UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 11-4974

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

HAROLD GONZALEZ ROQUE,

Defendant - Appellant.

Appeal from the United States District Court for the Western 

District of North Carolina, at Charlotte. Max O. Cogburn, Jr., 

District Judge. (3:09-cr-00177-MOC-2)

Submitted: September 28, 2012 Decided: November 26, 2012

Before NIEMEYER, DIAZ, and FLOYD, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Denzil H. Forrester, Charlotte, North Carolina, for Appellant. 

Anne M. Tompkins, United States Attorney, Melissa L. Rikard, 

Assistant United States Attorney, Charlotte, North Carolina, for 

Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Harold Gonzalez Roque pled guilty pursuant to a plea 

agreement to one count of conspiracy to defraud the Government 

by filing false claims, 18 U.S.C. § 286 (2006) (Count One), and 

conspiracy to defraud the United States, 18 U.S.C. § 371 (2006) 

(Count Two). The Government moved for a downward departure 

under U.S. Sentencing Guidelines Manual (“USSG”) § 5K1.1 (2010) 

based on Roque’s substantial assistance, and Roque ultimately 

received a 72-month sentence. On appeal, Roque seeks to 

challenge the sentencing court’s calculation regarding 

restitution, alleging the Government breached the plea 

agreement by referring to a money judgment entered into by the 

parties where none existed. The Government concedes that the 

statement was made in error, but argues the error did not 

constitute a breach or prejudice Roque. The Government further 

contends that because Roque agreed to waive his right to appeal 

his sentence, this appeal should be dismissed. Roque counters 

that the Government’s alleged breach voids his appellate waiver. 

Because we conclude that the Government did not breach the plea 

agreement and that the appeal waiver should be enforced, we 

dismiss the appeal.

Roque entered into a plea agreement in which the 

parties agreed pursuant to Fed. R. Crim. P. 11(c)(1)(B) to 

jointly recommend to the court: (1) the amount of loss known to 
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or reasonably foreseeable to Roque was more than seven million 

dollars, but less than twenty million dollars, corresponding to 

a twenty-level enhancement under USSG § 2B1.1(b)(1)(K); (2) the 

“loss” under USSG § 2B1.1(b) may be different from, greater

than, or less than “restitution” under 18 U.S.C. § 3556 (2006); 

and (3) Roque’s adjusted offense level is thirty-four. With 

respect to restitution, the plea agreement provided:

The defendant agrees to . . . pay full 

restitution, regardless of the resulting loss amount, 

to all victims directly or indirectly harmed by the 

defendant’s “relevant conduct.” . . . The defendant 

understands that such restitution will be included in 

the Court’s Order of Judgment and an unanticipated 

amount of a restitution order will not serve as 

grounds to withdraw the defendant’s guilty plea. 

Roque agreed to waive all rights to notice of forfeiture under 

Fed. R. Crim. P. 32.2. Additionally, he agreed to waive his 

right (1) to contest the conviction except for claims of 

ineffective assistance of counsel or prosecutorial misconduct, 

and (2) to appeal whatever sentence was imposed with the two 

exceptions set forth in (1). 

At sentencing, the district court affirmed the 

magistrate judge’s findings that Roque’s plea was knowingly and 

voluntarily made, and that he understood the charges and the 

consequences of his plea. The parties stipulated to the factual 

basis as set forth in the presentence report (“PSR”). Neither 

party objected to the PSR. When the district court asked 
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whether there was any criminal forfeiture in this case to be 

considered as part of the judgment, the Assistant United States 

Attorney responded: “Your Honor, we did I think execute a money 

judgment. We’d ask the Court to just orally pronounce that. I 

think it’s been executed by the parties and it’s been filed.” 

Defense counsel stated he had no objections to that motion. The 

court further ordered Roque to make restitution to the Internal 

Revenue Service in the amount of $12,342,117, as calculated in 

the PSR, noting that Roque was jointly and severally liable for 

the total amount of restitution with his co-conspirators. 

Based on the Assistant United States Attorney’s 

statement, the court noted there was a consent judgment 

agreement between the parties for the total amount of 

restitution in this case. The court recognized the judgment, 

ordered that it become a part of the record, stated that it 

would be signed by the court, and made the judgment a part of 

the sentence. The defense again did not object.

On appeal, Roque maintains that the Government 

breached the plea agreement at sentencing by proclaiming the 

existence of a consent judgment that did not exist. This 

statement, according to Roque, violated the plea agreement as it 

altered a material term of the plea document, i.e., restitution, 

and therefore voids his waiver of his right to appeal. He seeks 

to argue on appeal that his sentence in unreasonable because the 
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district court abused its discretion in ordering a restitution 

amount of $12.3 million dollars, based on a non-existent 

agreement. 

Because Roque did not object to the Government’s 

statement as a breach of the plea agreement, this court’s review 

is for plain error. Puckett v. United States, 556 U.S. 129, 

133–36 (2009); United States v. McQueen, 108 F.3d 64, 65–66 & n. 

1 (4th Cir. 1997) (citing United States v. Fant, 974 F.2d 559, 

565 (4th Cir. 1992)). “It is settled that a defendant alleging 

the Government’s breach of a plea agreement bears the burden of 

establishing that breach by a preponderance of the evidence.” 

United States v. Snow, 234 F.3d 187, 189 (4th Cir. 2000). Under 

plain error review, Roque must show not only that the plea 

agreement was breached, but also that “the breach was ‘so 

obvious and substantial that failure to notice and correct it 

affect[ed] the fairness, integrity or public reputation of the 

judicial proceedings.’” McQueen, 108 F.3d at 66 & n. 4 (quoting 

Fant, 974 F.2d at 565).

The Government concedes that there is no record of a 

money judgment agreement signed by the parties; however, it 

counters that Roque fails to demonstrate the Government’s 

mistaken assertion was contrary to any promise the Government 

made in the plea agreement or that Roque was prejudiced by the 

statement. When a plea agreement rests on an agreement or 
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promise that can be said to be part of the inducement or 

consideration, the promise must be fulfilled. United States v. 

Dawson, 587 F.3d 640, 645 (4th Cir. 2009). On the other hand, 

no party is obligated to do more than what is specified in the 

plea agreement itself. Id. 

Under Fed. R. Crim. P. 32(b)(1)(A), which pertains to 

forfeitures, “[i]f the Government seeks a personal money 

judgment, the court must determine the amount of money that the 

defendant will be ordered to pay.” The Government correctly 

notes that it made no promises or obligations in the plea 

agreement with respect to whether it would seek a money 

judgment. Therefore, Roque cannot establish the Government’s 

statement, albeit mistaken, constituted a breach of the plea 

agreement.

Assuming arguendo that the Government’s statement 

constituted a breach, that statement, contrary to Roque’s 

assertion, did not affect the ultimate order of restitution and, 

therefore, no prejudice resulted. In the PSR, the probation 

officer specifically calculated a restitution amount of 

$12,342,117, the same amount ordered by the court. See Fed. R. 

Crim. P. 32(c)(1)(B) (directing probation officer to conduct 

investigation and submit report regarding restitution to the 

court). When given an opportunity at sentencing, Roque lodged 

no objections to the probation officer’s calculation of 
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restitution in the PSR. Moreover, Roque does not assert that 

there has been any forfeiture of his assets in reliance on the 

non-existent money judgment. We conclude there was no error, 

much less plain error, because the Government did not breach the 

plea agreement.

The Government seeks enforcement of the plea 

agreement’s appeal waiver. A criminal defendant may waive the 

right to appeal if that waiver is knowing and intelligent. 

United States v. Poindexter, 492 F.3d 263, 270 (4th Cir. 2007). 

Generally, if the district court fully questions a defendant 

regarding the waiver of his right to appeal during a plea 

colloquy performed in accordance with Rule 11, the waiver is 

both valid and enforceable. United States v. Johnson, 410 F.3d 

137, 151 (4th Cir. 2005). Whether a defendant validly waived 

his right to appeal is a question of law this court reviews de 

novo. United States v. Blick, 408 F.3d 162, 168 (4th Cir. 

2005). Where the Government seeks to enforce an appeal waiver 

and there is no substantiated claim that the Government breached 

its obligations under the plea agreement, this court will 

enforce the waiver if the record establishes that (1) the 

defendant knowingly and intelligently agreed to waive the right 

to appeal, and (2) the issue being appealed is within the scope 

of the waiver. Id. at 168 & n. 5.
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Roque waived his right to appeal his sentence except 

based on claims of ineffective assistance of counsel and 

prosecutorial misconduct. This portion of the plea agreement 

was reviewed at the Rule 11 hearing and Roque acknowledged that 

he agreed to the provision. On appeal, Roque argues that the 

appeal waiver is not enforceable because the Government breached 

the plea agreement. Because the Government did not breach the 

plea agreement and Roque does not raise an issue outside the 

scope of the agreement, the appeal waiver will be enforced.

Accordingly, we dismiss the appeal. We dispense with 

oral argument because the facts and legal contentions are 

adequately presented in the materials before the court and 

argument would not aid the decisional process.

DISMISSED

 



He does not argue that his plea was not knowing or 

voluntary.