UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 05-4819

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

VELARIAN CARTER, a/k/a Larry Carter,

Defendant - Appellant.

Appeal from the United States District Court for the Southern

District of West Virginia, at Beckley. David A. Faber, Chief

District Judge. (CR-04-217)

Submitted: March 31, 2006 Decided: April 20, 2006

Before MOTZ, TRAXLER, and GREGORY, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Matthew M. Robinson, Cincinnati, Ohio, for Appellant. Charles T.

Miller, Acting United States Attorney, Miller A. Bushong, III,

Assistant United States Attorney, Beckley, West Virginia, for

Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

Velarian Carter pled guilty pursuant to an oral plea

agreement to conspiracy to distribute 500 grams or more of cocaine

and possession of marijuana with intent to distribute. Without

objection, the district court sentenced Carter to ten years’

imprisonment, which the court stated was the agreed upon sentence

under the plea agreement. On appeal, Carter contends that the

district court misunderstood the plea agreement, which instead

capped his sentence at ten years but did not prohibit a lower

sentence. In addition, Carter asserts that his sentence under the

advisory guidelines scheme of United States v. Booker, 543 U.S. 220

(2005), violated the Ex Post Facto Clause. We affirm.

Plea agreements are grounded in contract law, and both

parties should receive the benefit of their bargain. United

States v. Bowe, 257 F.3d 336, 345 (4th Cir. 2001). Because of

constitutional and supervisory concerns, the government is held to

a greater degree of responsibility for imprecisions or ambiguities

in plea agreements. United States v. Harvey, 791 F.2d 294, 300-01

(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 government must be held to promises it made,

it will not be bound to those it did not make.” United States v.

Fentress, 792 F.2d 461, 464-65 (4th Cir. 1986). 
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Although the district court stated on more than one

occasion that Carter’s sentence was “capped” at ten years, Carter

unambiguously agreed to a flat, ten-year sentence. The Government

informed the court that the agreement was for a ten-year sentence,

and Carter did not object. Carter’s counsel stated that he advised

his client to accept the guaranteed ten-year sentence, because had

he gone to trial, he faced a much longer sentence. At sentencing,

the Government again referred to the flat, ten-year agreement.

Carter’s counsel did not argue for a lower sentence but merely

requested counseling and a specific placement. In addition, when

the court stated that it was bound to impose the ten-year sentence,

Carter did not object. The record clearly shows that the parties

agreed to a ten-year sentence under Federal Rule of Criminal

Procedure 11(c)(1)(C), and Carter’s protestations to the contrary

are disingenuous.

In addition, Carter’s ex post facto argument is

foreclosed by the plea agreement. He stipulated to a ten-year

sentence, and that is what he received. In fact, he was not

sentenced under the Booker remedial advisory scheme. Instead, he

was sentenced solely on his agreement. Moreover, even considering

his ex post facto argument on the merits, it is unavailing. See

United States v. Dupas, 419 F.3d 916, 919-21 (9th Cir. 2005), cert.

denied, 126 S. Ct. 1484 (2006); United States v. Jamison, 416 F.3d

538, 539 (7th Cir. 2005); United States v. Scroggins, 411 F.3d 572,
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575-76 (5th Cir. 2005); United States v. Duncan, 400 F.3d 1297,

1306-08 (11th Cir.), cert. denied, 126 S. Ct. 432 (2005). 

Based on the foregoing, we affirm Carter’s 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