UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 08-4983

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

 v. 

JAMES H. WILKINS, 

 Defendant - Appellant. 

Appeal from the United States District Court for the Eastern 

District of Virginia, at Richmond. James R. Spencer, Chief 

District Judge. (3:08-cr-00076-JRS-1) 

Submitted: September 24, 2009 Decided: October 9, 2009 

Before WILKINSON, GREGORY, and AGEE, Circuit Judges. 

Dismissed in part; affirmed in part by unpublished per curiam 

opinion. 

Steven P. Hanna, Richmond, Virginia, for Appellant. Dana J. 

Boente, United States Attorney, Gurney W. Grant, II, Assistant 

United States Attorney, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

 James H. Wilkins pled guilty, pursuant to a plea 

agreement, to two counts of bank fraud, in violation of 18 

U.S.C. § 1344 (2006), and possession of firearms by a felon, in 

violation of 18 U.S.C. § 922(g)(1) (2006). He received a 

sentence of 108 months’ imprisonment and filed a timely appeal. 

 The Government filed a motion to dismiss, contending 

that Wilkins’s appeal is barred by the waiver contained in his 

plea agreement. In response, Wilkins filed a motion to compel, 

asserting that the Government breached the plea agreement “by 

pursuing the obstruction enhancement without sufficient evidence 

and advocating for the loss of acceptance of responsibility 

points.” We deferred action on the Government’s motion pending 

the submission of Appellant’s brief. 

 In his brief, Wilkins contends that the district court 

erred in enhancing his offense level for obstruction of justice, 

failing to reduce his offense level for acceptance of 

responsibility, and failing to require the Government to move 

for an additional reduction for acceptance of responsibility. 

The Government’s brief reasserts its argument that Wilkins 

waived his right to appeal; asserts that the district court 

correctly increased Wilkins’s offense level for obstruction of 

justice, precluding any offense level reduction for acceptance 

of responsibility; and contends that it did not breach the plea 

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agreement in failing to move for an additional reduction for 

acceptance of responsibility. Because the primary issues raised 

in Wilkins’s appeal are barred by the appellate waiver in his 

plea agreement, we dismiss the appeal as to those issues. To 

the extent Wilkins raises a claim not encompassed within the 

scope of the appellate waiver, we affirm. 

 Whether a defendant effectively waived his right to 

appeal pursuant to a plea bargain is an issue of law that is 

reviewed de novo. United States v. Blick, 408 F.3d 162, 168 

(4th Cir. 2005). Where the government seeks to enforce an 

appeal waiver and the appellant does not contend that the 

government is in breach of its plea agreement, a waiver will be 

enforced if the record shows the waiver is valid and the 

challenged issue falls within the scope of the waiver. Id. An 

appeal waiver is valid if it is “the result of a knowing and 

intelligent decision to forego the right to appeal.” United 

States v. Broughton-Jones, 71 F.3d 1143, 1146 (4th Cir. 1995) 

(internal quotation marks and citations omitted). Generally, if 

the district court fully questions a defendant at his 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, 

“we will not enforce an otherwise valid appeal waiver against a 

defendant if the government breached the plea agreement 

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

495 (4th Cir. 2006). 

 After reviewing the record, we find the district court 

fully questioned Wilkins regarding his intent to waive his right 

to appeal, and Wilkins does not suggest otherwise. Therefore, 

Wilkins’s waiver is both valid and enforceable. Additionally, 

it is immediately apparent that two of the issues raised by 

Wilkins on appeal – whether the district court erred in 

enhancing the offense level for obstruction of justice and by 

failing to reduce the offense level for acceptance of 

responsibility — are within the scope of the appeal waiver. In 

Wilkins’s plea agreement, he explicitly waived “the right to 

appeal the conviction and any sentence within the statutory 

maximum described above (or the manner in which that sentence 

was determined).” As both these issues concern “the manner in 

which [his] sentence was determined,” it is clear that, unless 

the Government breached its plea agreement, these issues are 

barred by Wilkins’s appeal waiver. 

 When a claim of breach of a plea agreement has been 

preserved, we review the district court’s factual findings for 

clear error and its “application of principles of contract 

interpretation de novo.” United States v. Bowe, 257 F.3d 336, 

342 (4th Cir. 2001). However, because Wilkins did not claim in 

the district court that the Government had breached the plea 

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agreement, our review is for plain error. Puckett v. United 

States, 129 S. Ct. 1423, 1428 (2009). 

 Plea agreements are grounded in contract law, and both 

parties should receive the benefit of their bargain. Bowe, 257 

F.3d at 345. The Government breaches the plea agreement when a 

promise it made to induce the plea goes unfulfilled. 

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 for imprecision 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 300, 303. However, “[w]hile the 

[G]overnment must be held to the 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). 

 Wilkins asserts that the Government breached the plea 

agreement by “pursuing the obstruction enhancement without 

sufficient evidence” and “advocating for the loss of acceptance 

of responsibility points.” Wilkins’s assertions are unsupported 

by the record. The Government filed a lengthy chronology of 

Wilkins’s statements to investigators, replete with instances in 

which Wilkins purposefully misled FBI agents regarding the 

whereabouts of various assets. The chronology compared 

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statements made by Wilkins to investigators to those he made in 

letters to a friend, instructing the friend to sell several 

assets in order to prevent their seizure. This chronology was 

incorporated by the probation officer into the presentence 

report. Moreover, the plea agreement contained no agreement by 

the Government to refrain from seeking an obstruction 

enhancement. 

 Similarly, contrary to Wilkins’s assertions, the 

Government’s agreement to move for an additional one-level 

acceptance of responsibility reduction was dependent on his 

qualifying for the two-level decrease of U.S. Sentencing 

Guidelines Manual § 3E1.1(a) (May 1, 2008). Because the 

district judge determined at sentencing that Wilkins did not 

qualify for the two-level reduction because of his obstruction 

of justice, the Government was not obligated to move for an 

additional one-level decrease, and it did not breach the plea 

agreement by failing to do so. 

 As the Government did not breach its plea agreement 

with Wilkins, the issues of whether the district court erred in 

denying Wilkins a two-point reduction for acceptance of 

responsibility and increasing his offense level for obstruction 

of justice are barred by the appeal waiver contained in his plea 

agreement. Finally, it is unclear whether Wilkins intended to 

raise the Government’s alleged breach of the plea agreement as a 

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separate issue or merely a method by which to avoid enforcement 

of the plea agreement. To the extent that Wilkins raises this 

as a separate issue, we find that it is without merit, for the 

reasons stated above. Accordingly, we grant the Government’s 

motion to dismiss in part and affirm the judgment of the 

district court. 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