UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 09-5079

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

MICHAEL EUGENE THRASH, JR.,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of North Carolina, at Elizabeth City. Malcolm J. 

Howard, Senior District Judge. (2:09-cr-00003-H-1)

Submitted: January 20, 2011 Decided: February 16, 2011

Before NIEMEYER and GREGORY, Circuit Judges, and HAMILTON, 

Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Diana Stavroulakis, Pittsburgh, Pennsylvania, for Appellant. 

George E. B. Holding, United States Attorney, Jennifer P.

May-Parker, Joshua B. Royster, Assistant United States 

Attorneys, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Michael Eugene Thrash, Jr., appeals his conviction and 

210-month sentence imposed following his guilty plea to one 

count of conspiracy to distribute and possess with intent to 

distribute fifty grams or more of cocaine base and more than 500 

grams of cocaine powder, in violation of 21 U.S.C. § 846 (2006). 

On appeal, Thrash contends the Government breached the plea 

agreement by withdrawing its motion for a reduction of sentence, 

pursuant to U.S. Sentencing Guidelines Manual (“USSG”) § 5K1.1, 

p.s. (2008). Thrash also contends that the terms of his plea 

agreement were breached when the district court declined to 

apply a reduction for acceptance of responsibility, pursuant to 

USSG § 3E1.1. The Government denies that it has breached the 

plea agreement and contends that the acceptance of 

responsibility claim is barred by Thrash’s waiver of his right 

to appeal. We affirm.

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, 495 (4th Cir. 2006). “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). Because Thrash did not raise this issue in the district 
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court, it is reviewed for plain error. See Puckett v. United 

States, 129 S. Ct. 1423, 1428 (2009). To prevail under this 

standard, Thrash must show not only that the Government plainly 

breached the plea agreement, but also that he was prejudiced by 

the error and that “the breach was so obvious and substantial 

that failure to notice and correct it affected the fairness, 

integrity or public reputation of the judicial proceedings.” 

United States v. McQueen, 108 F.3d 64, 65-66 (4th Cir. 1997) 

(internal quotation marks and alteration omitted); see United 

States v. Dawson, 587 F.3d 640, 645 (4th Cir. 2009). 

Plea agreements are grounded in contract law, and both 

parties should receive the benefit of their bargain. United 

States v. Chase, 466 F.3d 310, 314 (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 of “constitutional and 

supervisory concerns,” the Government is held to a “greater 

degree of responsibility than the defendant . . . for 

imprecisions or ambiguities in plea agreements.” United 

States v. Harvey, 791 F.2d 294, 300 (4th Cir. 1986). Where an 

agreement is ambiguous in its terms, the terms must be construed 

against the Government. Id. at 303. However, “[w]hile the 

[G]overnment must be held to the promises it made, it will not 
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be bound to those it did not make.” United States v. Fentress, 

792 F.2d 461, 464 (4th Cir. 1986). 

After reviewing the record, we find that the 

Government’s declination to move for a reduction in sentence was 

not in breach of the plea agreement. Moreover, the plea 

agreement merely recommended that the district court apply a 

reduction for acceptance of responsibility, pursuant to USSG 

§ 3E1.1, and this recommendation was not binding on the court. 

To the extent that Thrash seeks to argue that the district court 

erred in refusing a sentence reduction for acceptance of 

responsibility, USSG § 3E1.1, this claim is barred by Thrash’s 

unchallenged appellate waiver.

Accordingly, we affirm Thrash’s convictions and 

sentence. 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. 

AFFIRMED