UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 15-4023

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DAVID LEE PARKER, 

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of Virginia, at Alexandria. Gerald Bruce Lee, District 

Judge. (1:12−cr−00059−GBL−1) 

Argued: September 20, 2016 Decided: December 2, 2016 

Before TRAXLER and DUNCAN, Circuit Judges, and DAVIS, Senior 

Circuit Judge.

Dismissed by unpublished per curiam opinion. 

ARGUED: Frances H. Pratt, OFFICE OF THE FEDERAL PUBLIC DEFENDER, 

Alexandria, Virginia, for Appellant. Richard Daniel Cooke, 

OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for 

Appellee. ON BRIEF: Geremy C. Kamens, Acting Federal Public 

Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, 

Virginia, for Appellant. Dana J. Boente, United States 

Attorney, Christopher Catizone, Assistant United States 

Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, 

Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

David Lee Parker seeks to appeal the 111-month sentence 

entered on his convictions pursuant to his guilty plea to four 

counts of fraud (i.e., access device fraud, wire fraud, and 

fraud in connection with computers, in violation of 18 U.S.C. 

§§ 1029(a)(2), 1343, and 1030(a), respectively) and two counts 

of identity theft, in violation of 18 U.S.C. § 1028A(a). 

Parker’s counsel filed a brief pursuant to Anders v. California, 

386 U.S. 738 (1967), and the Government moved to dismiss the 

appeal based on an appellate waiver contained in the plea 

agreement between the parties. Parker filed a pro se 

supplemental brief raising numerous issues, and we ordered 

supplemental briefing on the issue of whether the Government 

breached the plea agreement at sentencing. Finding no breach and 

that the appeal waiver is enforceable, we grant the Government’s 

motion and dismiss the appeal.

I.

Parker contends that the Government breached the plea 

agreement by failing to recommend at sentencing that the 

district court treat the four fraud counts individually, and 

that this breach constitutes plain error affecting his 

substantial rights. As part of the plea agreement, the 

Government promised that it would “recommend to the [district] 

[c]ourt that at least [sic] the following provisions of the 
3

Sentencing Guidelines apply.” J.A. 58. The plea agreement then 

lists each fraud count -- Counts 1, 3, 5, and 6 -- with its base 

offense level and loss amount. The plea agreement states that 

U.S.S.G. § 2B1.1 applies to all four fraud counts. 

The presentence report grouped Counts 1, 3, 5, and 6 and 

calculated a base offense level of 7 for the group under 

U.S.S.G. § 2B1.1(a)(1). With 20 levels in increases and a three

level reduction for acceptance of responsibility, Parker’s total 

offense level was 24. Parker’s criminal history was in Category

III, and the presentence report calculated his Guidelines range 

for the group at 63 to 78 months’ imprisonment. Separately, 

Parker was subject to consecutive terms of 24 months’ 

imprisonment on Counts 2 and 4 (identity theft), and the 

presentence report calculated these prison terms as his

Guidelines sentences for those counts. Parker contends that his 

total advisory sentencing range would have been lower without 

grouping.

At Parker’s initial sentencing in May 2012, the district 

court orally announced a sentence of concurrent terms of 78 

months’ imprisonment on Counts 1, 3, and 5, a concurrent 

sentence of 60 months’ imprisonment on Count 6, and “a sentence 

of 24 months consecutive to all other counts for each other for 

Counts 2 and 4,” for a total sentence the court concluded 

amounted to 111 months’ imprisonment (rather than 112 months). 
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J.A. 129. After the court excused the parties, it “adjust[ed] 

[the sentence] to 111” by imposing concurrent sentences of 50 

months on Counts 1, 3, and 5, “plus 60.” J.A. 133-34.

Despite these oral pronouncements, the district court’s

docket shows apparent revisions to Parker’s sentence on three 

additional occasions: (1) a minute entry reflects the imposition 

of another 111-month total prison term; (2) a June 11, 2012,

judgment reflects the imposition of another 111-month total 

prison term; and (3) a June 19, 2012, amended judgment reflects 

the imposition of yet another 111-month total prison term. 

Parker did not note an appeal from these judgments.

Later, Parker filed a 28 U.S.C. § 2255 motion to vacate, 

and the district court denied relief. Parker appealed, and we

concluded, in granting a certificate of appealability, as 

follows: (1) that the district court lacked jurisdiction to 

modify Parker’s sentence after June 6, 2012, and thus the 

sentences issued in the June 11 and June 19 judgments were of no 

effect and not subject to appellate review; (2) as to the 

“operative” sentence for review -- a 61-month sentence on Counts 

2 and 4 -- we determined that this sentence exceeded the 

statutory maximum for those counts and noted that Parker had 

preserved the right to appeal any sentence exceeding the 

statutory maximum; and (3) that Parker was sentenced in 

violation of the laws of the United States and that the record 
5

did not conclusively show he was not entitled to relief on his 

contention that counsel rendered ineffective assistance. 

Accordingly, by order entered on April 9, 2014, we vacated 

Parker’s sentence and remanded. At the resentencing, the 

district court again sentenced Parker to 111 months in prison. 

II.

The Government makes three arguments that we cannot reach 

the issue of whether the Government breached the plea agreement. 

First, the Government contends that Parker has waived any 

argument on appeal by focusing on the original sentencing, not 

the resentencing. Parker correctly points out, however, that the 

plea agreement, which is the subject of this appeal, applies to 

both the original and subsequent sentencings.

The Government next argues that Parker has waived the 

argument that it breached the plea agreement by arguing before 

the district court that Counts 1, 3, 5, and 6 were groupable.

Although Parker’s actions before the district court can be 

construed as acceptance of the grouping, his failure to object 

to the grouping does not waive his claim that the Government 

breached the plea agreement. See Puckett v. United States, 556 

U.S. 129, 138 (2009). 

Finally, the Government argues that the law-of-the-case 

doctrine precludes review of Parker’s claim. Parker’s § 2255 

motion argued that the Government breached the plea agreement by 
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applying the two-level enhancement for more than ten victims. We

dismissed that claim in our prior order, specifically holding 

that “[t]he Government did not breach the plea agreement by 

agreeing with the presentence report’s recommendation to apply a 

two-level enhancement to Parker’s offense level for an offense 

involving ten or more victims.” J.A. 216-17. The law-of-the-case 

doctrine applies to “the same issues in subsequent stages in the 

same case.” United States v. Aramony, 166 F.3d 655, 661 (4th 

Cir. 1999). Whether the Government breached the plea agreement 

by agreeing with the two-level enhancement and whether the 

Government breached the plea by supporting the district court’s 

grouping of the fraud counts are separate issues. Our previous 

decision held only that the Government did not breach the 

agreement with regard to the two-level enhancement. Therefore, 

the law-of-the-case doctrine does not apply to Parker’s argument 

that the Government breached the plea agreement by agreeing to 

the grouping of the fraud counts.

III.

We come, then, to the core of Parker’s present argument:

that the Government breached the plea agreement by not 

recommending that Counts 1, 3, 5, and 6 be treated individually, 

rather than grouped. Whether the Government breached the plea 

agreement is a question of law that we review de novo. United 

States v. Lopez, 219 F.3d 343, 346 (4th Cir. 2000). “[A] 
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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 Parker did not raise this objection before 

the district court, our review is for plain error. See United 

States v. Mastrapa, 509 F.3d 652, 657 (4th Cir. 2007). 

Accordingly, Parker must show “(1) an error, (2) that is plain, 

(3) that affects the defendant's substantial rights, and (4) 

that seriously affects the fairness, integrity, or public 

reputation of judicial proceedings.” United States v. Dawson, 

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

“[W]e will not hold the Government to promises that it did 

not actually make in the plea agreement.” United States v. Obey, 

790 F.3d 545, 547 (4th Cir. 2015). The record does not reflect

that the Government promised Parker that the fraud counts would 

be treated separately. Instead, the plea agreement stated that 

“the United States and the defendant will recommend to the Court 

that at least the following provisions of the Sentencing 

Guidelines apply,” J.A. 58, and then listed each of the four 

fraud counts and each count’s applicable base offense level and 

loss amount. Despite Parker’s arguments to the contrary, the 

plea agreement does not demonstrate that the parties understood 

the four grouped counts would be treated individually. Plea 

agreements are construed using principles imported from contract 
8

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

and are interpreted by the agreement’s “plain language in its 

ordinary sense,” United States v. Jordan, 509 F.3d 191, 195 (4th 

Cir. 2007). It is undisputed that U.S.S.G. § 2B1.1 is the 

applicable Guideline for all four fraud counts, and Parker 

concedes that the counts were subject to mandatory grouping. See

U.S.S.G. § 3D1.2 (“When the offense level is determined largely

on the basis of the total amount of harm or loss,” counts “shall 

be grouped together into a single Group” under subsection (d), 

which expressly lists § 2B1.1 as a Guideline for which offenses 

covered by it “are to be grouped”). Both defense counsel and the 

Government are familiar with sentencing procedures. See J.A. 32 

(district judge noting during the colloquy that defense counsel 

“is a very experienced criminal defense attorney”). Thus, the 

logical reading of the plea agreement is that it does not 

address whether the fraud counts would be grouped because both 

parties knew they had to be as a matter of law. Furthermore, if 

the parties were going to stipulate to something that is 

contrary to the Guidelines, it is reasonable to expect the plea 

agreement to state that explicitly. Parker has presented no 

evidence demonstrating that the Government promised to treat the 

fraud counts individually, and the plea agreement contained no 

language precluding the Government from arguing that the fraud 
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counts should be grouped. Accordingly, we find that the 

Government did not plainly breach the plea agreement.

IV.

Even if one were persuaded by the rather awkward phrasing 

of the plea agreement that the Government committed a breach of 

the agreement, any such breach is, manifestly, harmless in the 

circumstances of this case. An error is harmless and will not be 

corrected if “it did not affect the defendant’s substantial 

rights.” United States v. Lewis, 633 F.3d 262, 271 (4th Cir. 

2011). “A defendant’s substantial rights are affected if the 

error affected the outcome of the district court proceedings.” 

Dawson, 587 F.3d at 645 (internal quotation marks omitted).

The district court correctly grouped the fraud counts, as 

it was required to do under the Sentencing Guidelines. Moreover, 

the trial court has sentenced Parker to 111 months numerous 

times, providing lengthy explanations for its exercise of 

discretion. At the first sentencing, the district court wanted 

to impose a 111-month sentence but incorrectly apportioned the 

counts. After we vacated the sentence and ordered resentencing, 

the district court again sentenced Parker to 111 months but 

reallocated the months among the counts to be within the 

statutory maximums. Because the district court properly grouped 

the counts and repeatedly imposed a 111-month sentence, Parker 

cannot plausibly establish that his substantial rights were 
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affected by the Government’s alleged breach of the plea 

agreement. See generally United States v. Savillon–Matute, 636 

F.3d 119, 123 (4th Cir. 2011) (applying “assumed error 

harmlessness inquiry” approach in analyzing challenge to 

sentence).

V.

For the foregoing reasons, the Government’s motion to 

dismiss is GRANTED and this appeal is

DISMISSED.