Filed: March 20, 1996

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 95-5378

(CR-94-53-BO)

United States of America,

Plaintiff - Appellee,

versus

Earnest Thomas,

Defendant - Appellant.

ORDER

The Court amends its opinion filed March 11, 1996, as follows:

On page 4, second full paragraph, lines 10-11 -- the quotation

marks around the phrase "a right he specifically waived" are

deleted; the phrase should be set off by dashes.

For the Court - By Direction

/s/ Bert M. Montague

Clerk
UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 95-5378

EARNEST THOMAS,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of North Carolina, at Raleigh.

Terrence W. Boyle, District Judge.

(CR-94-53-BO)

Submitted: January 30, 1996

Decided: March 11, 1996

Before ERVIN, HAMILTON, and WILLIAMS, Circuit Judges.

_________________________________________________________________

Dismissed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Laura J. Wetsch, JORDAN, PRICE, WALL, GRAY & JONES,

L.L.P., Raleigh, North Carolina, for Appellant. Janice McKenzie

Cole, United States Attorney, William Arthur Webb, Assistant United

States Attorney, Raleigh, North Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).
OPINION

PER CURIAM:

Earnest Thomas seeks to appeal the 360-month sentence he

received after he pled guilty to conspiracy to possess crack cocaine

with intent to distribute, 21 U.S.C.A. § 846 (West Supp. 1995). The

government has moved to dismiss the appeal because Thomas waived

the right to appeal his sentence as long as he was sentenced within the

guideline range. Thomas contends that the government breached the

plea agreement by arguing for an upward departure at the sentencing

hearing and that the breach releases him from his promise not to

appeal. For reasons explained below, we grant the government's

motion and dismiss the appeal.

The waiver provision was discussed at the Fed. R. Crim. P. 11

hearing before Thomas entered his guilty plea, and the record discloses that the waiver was knowing and voluntary. Thomas also

agreed to cooperate fully and to take a polygraph examination if

requested. The government stipulated in the plea agreement that

"[n]one of the factors listed in U.S.S.G. §§ 5K2.0 through 5K2.14 are

applicable to warrant an upward . . . departure from the Guideline

range." The government reserved the right to argue for a departure "if

Defendant's conduct prior to sentencing changes the circumstances

with respect to any such factors."

Thomas subsequently failed the polygraph examination. He gave

deceptive answers when he denied selling crack prior to July 1993,

receiving cocaine from any member of Lance Morrison's organization, selling cocaine from his home, or giving cocaine to his children.

Shortly afterward, Thomas minimized his involvement in the conspiracy in a written statement to the probation officer, denying conduct

which had been described by other conspirators. In its sentencing

memorandum, the government moved for an upward departure under

USSG § 5K2.0 on the ground that Thomas had involved his children

in drug trafficking, and also argued that Thomas should receive an

adjustment for obstruction of justice because the false information he

provided impeded an ongoing investigation.

At Thomas's sentencing hearing, the district court determined that

Thomas had obstructed justice by lying during the polygraph exami-

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nation and by intimidating potential witnesses against him. The government then withdrew its motion for an upward departure. With the

two-level adjustment for obstruction of justice, Thomas's offense

level was 40; he was in criminal history category I, making his guideline range 292-365 months. A sentence of 360 months was imposed.

Thomas appealed his sentence, arguing that the district court

clearly erred in enhancing his sentence for obstruction of justice and

refusing him an adjustment for acceptance of responsibility. The government has moved to dismiss, relying on the waiver provision in the

plea agreement. In reply, Thomas maintains that the government

breached the plea agreement by moving for an upward departure and

that, as a result, he is no longer bound by the waiver provision. The

government argues in response that no breach occurred because

Thomas's failure to cooperate truthfully created a changed circumstance which permitted a motion for an upward departure.

Breach of Plea Agreement

Because Thomas did not claim in the district court that the plea

agreement had been breached, the sentence must be affirmed unless

plain error occurred. United States v. Fant, 974 F.2d 559, 564-65 (4th

Cir. 1992). The plea agreement stated that "if Defendant's conduct

prior to sentencing changes the circumstances with respect to any

such factors [the factors listed in USSG §§ 5K2.0-5K2.14], the Government is no longer bound to its position as to those factors."

(emphasis added). Thomas's failure to give truthful answers on the

polygraph test and failure to cooperate fully did not result in any

change with respect to the factors listed in USSG §§ 5K2.0-5K2.14.

The government had knowledge before Thomas pled guilty that his

oldest son, Justin Hawkins, was selling crack and that his younger

children had witnessed his drug trafficking in their home. Even

though the government possessed this information, it stipulated in the

agreement that there were no factors warranting a departure. Thomas's refusal to be truthful and to cooperate does not change the circumstances with respect to a departure based on his children's

involvement in crime. Rather, it is a factor which is adequately considered under the guidelines for acceptance of responsibility and

obstruction of justice. Therefore, the record discloses that the govern-

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ment breached the plea agreement by moving for an upward departure.

Enforcement of Waiver Provision

A prosecutor's breach of a plea agreement may amount to plain

error which requires resentencing. Fant, 974 F.2d at 565. In United

States v. Gonzalez, 16 F.3d 985, 988-90 (9th Cir. 1993), on which

Thomas relies, the government agreed not to oppose an acceptance of

responsibility adjustment but argued against the adjustment at sentencing and convinced the court not to grant it. The appeals court

found that the government's breach of the plea agreement released

Gonzalez from his promise not to appeal.

This court has held that, when the bargain contained in the plea

agreement is unfulfilled, the district court should decide whether specific performance, plea withdrawal, or other equitable relief is the best

remedy for a government breach of the plea agreement. United States

v. Conner, 930 F.2d 1073, 1076 (4th Cir.), cert. denied, 502 U.S. 958

(1991). However, in this case, the government's motion for a departure was withdrawn at sentencing, and the district court imposed a

sentence within the guideline range. Consequently, Thomas received

the benefit of his bargain, and he has had specific performance. He

seeks to appeal the court's determination of the guideline range -- a

right he specifically waived -- and its decision not to depart below the

guideline range. The government's breach of the agreement had no

bearing on the decisions Thomas seeks to appeal. Therefore, while we

do not condone the government's breach of the agreement, we find

that the waiver provision was not nullified by the government's

action.

We therefore 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

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