PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 17-4558

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

UNDER SEAL,

Defendant - Appellant.

Appeal from the United States District Court for the District of Maryland, at Greenbelt. 

George Jarrod Hazel, District Judge.

Argued: May 10, 2018 Decided: August 22, 2018

Before TRAXLER and DIAZ, Circuit Judges, and Richard M. GERGEL, United States 

District Judge for the District of South Carolina, sitting by designation.

Affirmed by published opinion. Judge Traxler wrote the opinion, in which Judge Diaz 

and Judge Gergel joined. 

ARGUED: Joanna Beth Silver, OFFICE OF THE FEDERAL PUBLIC DEFENDER, 

Greenbelt, Maryland, for Appellant. Gustav William Eyler, OFFICE OF THE UNITED 

STATES ATTORNEY, Greenbelt, Maryland, for Appellee. ON BRIEF: James Wyda, 

Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, 

Baltimore, Maryland, for Appellant. Charles J. Biro, UNITED STATES 

DEPARTMENT OF JUSTICE, Washington, D.C.; Stephen M. Schenning, Acting United 

States Attorney, Baltimore, Maryland, Bryan E. Foreman, Assistant United States 
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Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland.
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TRAXLER, Circuit Judge:

Appellant pleaded guilty pursuant to a plea agreement to conspiracy to commit 

access-device fraud, see 18 U.S.C. § 1029(b)(2), and aggravated identity theft, see 18 

U.S.C. § 1028A. The district court imposed a total sentence of 49 months. Appellant

appeals, arguing that the district court erred by allowing the government to decline to 

seek a substantial-assistance sentence reduction without following the procedure set out 

in the plea agreement. Finding no error, we affirm.

I.

A.

The plea agreement executed by the parties consists of two parts – the standard 

plea agreement used by the United States Attorney’s office in the Southern Division of 

the District of Maryland, and a sealed supplement containing terms specific to 

Appellant’s case.

Paragraph 19 of the standard-term portion of the plea agreement is entitled 

“Obstruction or Other Violations of Law,” and provides as follows:

The Defendant agrees that he will not commit any offense in 

violation of federal, state or local law between the date of this agreement 

and his sentencing in this case. In the event that the Defendant (i) engages 

in conduct after the date of this agreement which would justify a finding of 

obstruction of justice under U.S.S.G. § 3C.1, or (ii) fails to accept personal 

responsibility for his conduct by failing to acknowledge his guilt to the 

probation officer who prepares the Presentence Report, or (iii) commits any 

offense in violation of federal, state, or local law, then this Office will be 

relieved of its obligations to the Defendant as reflected in this agreement. 

Specifically, this Office will be free to argue sentencing guideline factors 

other than those stipulated in this agreement, and it will also be free to 

make sentencing recommendations other than those set out in this 

agreement. As with any alleged breach of this agreement, this Office will 
4

bear the burden of convincing the Court of the Defendant’s obstructive or 

unlawful behavior and/or failure to acknowledge personal responsibility by 

a preponderance of the evidence. The Defendant acknowledges that he 

may not withdraw his guilty plea because this Office is relieved of its 

obligations under the agreement pursuant to this paragraph.

J.A. 27.

The sealed supplement to the plea agreement requires Appellant to “fully and 

truthfully respond to all questions from federal law enforcement authorities” and to “fully 

and truthfully disclose to the Government all information with respect to the Defendant’s 

activities and the activities of others concerning all matters as to which the Government 

may choose to inquire.” J.A. 32. The sealed supplement also explicitly required 

Appellant to “testify fully and truthfully before grand juries and at any trial and other 

court proceeding with respect to any matters about which [the government] may require 

testimony.” J.A. 33.

Paragraphs 3 and 4 of the sealed portion address Appellant’s cooperation with the 

government and provide as follows:

3. If the Defendant fully complies with all of the terms of the 

plea agreement and this Sealed Supplement, then in connection with the 

Defendant’s sentencing, this Office will inform the Probation Office and 

the Court of (i) the nature and extent of the Defendant’s cooperation; and 

(ii) all other information with respect to the Defendant’s background, 

character, and conduct which this Office deems relevant to sentencing, 

including the conduct that is the subject of any counts of the Indictment that 

this Office has agreed to dismiss at sentencing.

4. If this Office determines that the Defendant has provided 

substantial assistance in an investigation or prosecution of others, and if the 

Defendant has fully complied with all obligations under the plea agreement 

and this Sealed Supplement, this Office will make a motion, pursuant to 

U.S.S.G. § 5K1.1 and/or 18 U.S.C. § 3553(e), if this Office in its discretion 

deems it appropriate, requesting that the Court: (1) sentence the Defendant 
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in light of the advisory factors set forth in § 5K1.1(a)(1)-(5), requesting a 

downward departure of up to 2 levels for Count One, and (2) giving the 

Court discretion to impose a sentence below the two-year mandatory 

consecutive sentence for Count Two. This Office shall have sole discretion 

in determining whether to make any motion pursuant to § 5K1.1 and/or § 

3553(e). This Office is not obligated to use the Defendant’s cooperation or 

assistance in any matter. This Office’s determination whether the 

Defendant has provided substantial assistance will not depend in any way 

on the outcome of any trial or other proceeding. If this Office makes a 

motion for departure under both § 5K1.1 and § 3553(e), the Defendant is 

bound by the § 5K1.1 departure level recommended by this Office. If this 

Office makes a motion for departure under only § 5K1.1 -- and thus does 

not make a motion under § 3553(e) -- the Defendant is not bound by the § 

5K1.1 departure level recommended by this Office. The Defendant 

understands that should this Office determine not to make a motion 

pursuant to § 5K1.1 and/or § 3553(e), that will not entitle the Defendant to 

withdraw a guilty plea once it has been entered. It is also understood that, 

even if such a motion is made, the sentence to be imposed on the Defendant 

remains within the sole discretion of the Court.

J.A. 33-34 (emphasis in original).

The sealed supplement also includes provisions mirroring the terms set out in 

paragraph 19 of the standard-term portion quoted above. Under paragraph 6 of the sealed 

supplement, entitled “Remedies for Breach,” the government is released from its 

obligations under the agreement if, inter alia,

the Defendant has knowingly withheld information; given false, 

incomplete, or misleading testimony or information; falsely implicated an 

innocent person in the commission of a crime, exaggerated the involvement 

of any person in the commission of a crime in order to appear cooperative, 

or falsely minimized the involvement of any person or the Defendant in the 

commission of a crime; engaged in conduct after the date of this agreement

which would justify a finding of obstruction of justice under U.S.S.G. § 

3C1.1 . . . .

. . . .

Whether or not the Defendant has violated the terms of the plea 

agreement and this Sealed Supplement shall be determined by the Court in 
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an appropriate proceeding at which the Defendant’s disclosures and 

documents shall be admissible and at which this Office shall be required to 

establish any alleged breach by a preponderance of the evidence. . . .

J.A. 34-35. 

B.

Prior to sentencing, the government informed Appellant that it would not be 

seeking a substantial-assistance departure under U.S.S.G. § 5K1.1. Although Appellant

had assisted the government during its investigation, the government believed that 

Appellant did not testify fully against his co-conspirators at trial but instead downplayed 

their involvement. The government, however, did not seek to hold Appellant in breach 

of the plea agreement, and it made the other sentencing recommendations required under 

the plea agreement.

Appellant argued at sentencing that he had fully complied with his obligations 

under the plea agreement and that he was entitled to have the government make a 

substantial-assistance motion on his behalf. Appellant contended that because the 

provision of false, incomplete or misleading testimony was a basis for finding him in 

breach of the plea agreement, see Sealed Supplement par. 6, the government could 

decline to file a § 5K1.1 motion on those grounds only after proving at a hearing that 

Appellant’s testimony was incomplete.

Although the district court initially indicated that it found the terms of paragraph 4 

and 6 of the sealed supplement to be somewhat contradictory, the court ultimately ruled 

in favor of the government. Given the language in the plea agreement giving the 

government the sole discretion to decide whether to file a substantial-assistance motion, 
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the court held that it was not necessary for the court to determine whether Appellant had 

breached the agreement.

Despite its recognition that Appellant’s trial testimony had been somewhat 

evasive, the district court varied downward in light of Appellant’s assistance and 

sentenced Appellant to 25 months on count one, against an advisory sentencing range of 

37-46 months. As to count two, the court imposed the mandatory-minimum consecutive 

sentence of 24 months, for a total sentence of 49 months. The court explained that the 

sentence imposed fell within the advisory range applicable to an offense level of 17, 

rather than the offense level of 21 calculated in the presentence report. If the government 

had sought a substantial-assistance reduction for Appellant, the plea agreement would 

have only required the government to recommend a 2-level departure. 

II.

A.

Appellant argues on appeal that the district court erred by permitting the 

government to decline to move for a substantial-assistance reduction without requiring it 

to prove by a preponderance of the evidence that Appellant had breached his obligations 

under the plea agreement. Appellant contends that while the plea agreement gives the 

government the sole discretion to determine whether he provided substantial assistance, 

the agreement obligates the government to seek a § 5K1.1 sentence reduction if the 

government in fact determines that Appellant provided substantial assistance. Appellant

argues that if the reason that the government declines to seek a sentence reduction is that 

Appellant breached the agreement by engaging in any of the conduct set out in paragraph 
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6 of the sealed supplement (which includes the failure to testify fully at trial), then the 

plea agreement requires the government to prove the breach by a preponderance of the 

evidence. Appellant insists that his is the reading compelled by the unambiguous 

language of the plea agreement, but he argues alternatively that if this court disagrees, we 

should at a minimum find the agreement ambiguous.

B.

“When interpreting plea agreements, we draw upon contract law as a guide to 

ensure that each party receives the benefit of the bargain, and to that end, we enforce a 

plea agreement’s plain language in its ordinary sense.” United States v. Warner, 820 

F.3d 678, 683 (4th Cir. 2016) (internal quotation marks omitted); accord United States v. 

Yooho Weon, 722 F.3d 583, 588 (4th Cir. 2013). As is the case with other contracts, 

ambiguities in a plea agreement are “construed against the government as its drafter.” 

United States v. Barefoot, 754 F.3d 226, 246 (4th Cir. 2014). Indeed, because plea 

agreements involve waivers of constitutional rights, we review them “with greater 

scrutiny than we would apply to a commercial contract and hold the Government to a 

greater degree of responsibility than the defendant for imprecisions or ambiguities in plea 

agreements.” United States v. Davis, 714 F.3d 809, 814-15 (4th Cir. 2013) (alteration 

and internal quotation marks omitted). The fact that a plea agreement is at issue, 

however, does not give us license to re-write the agreement or to create ambiguities 

where there are none. See United States v. Zuk, 874 F.3d 398, 408 (4th Cir. 2017).

C.
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As discussed above, the plea agreement requires Appellant to “testify fully and 

truthfully before grand juries and at any trial and other court proceeding,” J.A. 33. 

Paragraph 4 of the sealed portion of the plea agreement provides that if Appellant fully 

complies with that and other obligations, the government will make a substantialassistance motion if the government “in its discretion deems it appropriate.” J.A. 34. 

Paragraph 6 of the sealed portion provides that if Appellant breaches his contractual 

obligations -- including his obligation to testify fully and completely -- the government is 

freed of its obligations under the agreement. Appellant contends that these provisions, 

read together, unambiguously require the government to prove by a preponderance of the 

evidence that Appellant did not testify truthfully and completely if the government bases 

its decision not to seek a sentence reduction on Appellant’s lack of candor.

Even if we accept Appellant’s claim that the language of the plea agreement 

obligates the government to file a § 5K1.1 motion if it determines, in its sole discretion, 

that Appellant provided substantial assistance, the rest of Appellant’s argument does not 

flow from that premise. Paragraphs 4 and 6 address different aspects of the contractual 

relationship between Appellant and the government. Paragraph 4 spells out the scope of 

the government’s obligations regarding a substantial-assistance motion. Paragraph 6, by 

contrast, sets out the government’s rights in the event of a breach by Appellant – an issue 

about which paragraph 4 is entirely silent. As Appellant concedes, paragraph 4 gives the 

government the sole discretion to determine whether Appellant provided substantial 

assistance. Paragraph 4 does not in any way cabin the government’s discretion when 
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making that determination, nor does it implicitly or explicitly incorporate the procedures 

set out in paragraph 6. 

It is well established that breaches of contract can generally be waived by the 

injured party. See, e.g., United States v. Hallahan, 756 F.3d 962, 973 (7th Cir. 2014)

(“[T]he rule is that where one party commits a material breach, the non-breaching party 

may elect to terminate the entire agreement or seek to enforce the remainder of the 

contract.” (citing 23 Williston on Contracts § 63:8 (4th ed.)); Greenwell v. American. 

Guar. Corp., 277 A.2d 70, 75 (Md. 1971) (“There are few principles of contract law 

better established, or more uniformly acknowledged, than that a party to an executory 

bilateral contract, who keeps the same in existence after a known breach by the other 

party and accepts further performance from the party who has committed the breach, 

waives the breach. . . .” (internal quotation marks omitted)). Thus, even though 

Appellant’s failure to testify truthfully and completely could have amounted to a breach 

of his duties under the plea agreement, the government, as with any other injured party,

had the right to waive that breach.

That is precisely what happened in this case. The government determined that 

Appellant had not fulfilled his obligation to testify truthfully. Rather than declare 

Appellant in breach of the agreement, however, the government elected to keep the plea 

agreement in place and exercise its right under the agreement to refuse to move for a 

substantial-assistance sentence reduction. As no language in the plea agreement or 

principle of law required the government to do otherwise, the government’s approach 

was entirely proper. See Hallahan, 756 F.3d at 973 (Although defendants breached the 
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plea agreements by absconding for 12 years, “the government has elected to enforce the 

remaining provisions of the plea agreements, including the appeal waivers. We see no 

reason why it should not be allowed to do so.”).

Appellant’s approach would effectively require the government to declare 

Appellant in breach of the agreement. Such an approach is not supported by any 

language in the plea agreement and would in fact be inconsistent with the special 

solicitude generally applied when interpreting plea agreements. If the government 

declared Appellant to be in breach, the government would be released of its obligations 

under the plea agreement. See J.A. 27; 34-35. While the possibility of a substantialassistance motion may have been the most important of the government’s obligations, the 

government made other concessions as part of the agreement. The other obligations from 

which the government would be freed in the event of a breach by Appellant include: (1) 

arguing for a loss amount of no more than $500,000; (2) recommending a 3-level 

acceptance-of-responsibility reduction; and (3) recommending a sentence at the low end 

of Appellant’s advisory sentencing range. See J.A. 23-24. Appellant’s reading of the 

agreement thus would put him in a substantially worse position than the government’s 

reading. If the government proved Appellant’s lack of candor, Appellant would not only 

lose the substantial-assistance reduction, but also the other sentencing concessions made 

by the government, thereby exposing him to a significantly higher advisory sentencing 

range. Because no language in the plea agreement nor any principle of contract law 

supports Appellant’s reading of the agreement, we decline to adopt it. See Zuk, 874 F.3d 

at 407–08.
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D.

We likewise find no merit to Appellant’s fallback argument that the plea 

agreement, at the very least, is ambiguous. 

Generally speaking, a plea agreement or other contract is ambiguous if it is 

reasonably susceptible of two meanings. See, e.g., United States v. Lewis, 673 F.3d 758, 

763 (8th Cir. 2011); United States v. Gebbie, 294 F.3d 540, 551 (3d Cir. 2002). “In

determining whether [a plea] agreement is ambiguous, courts examine the entire contract, 

considering particular words not as if isolated from the context, but in the light of the 

obligation as a whole. Form should not prevail over substance, and a sensible meaning of 

words should be sought.” United States v. McLaughlin, 813 F.3d 202, 204 (4th Cir. 

2016) (alteration, citations, and internal quotation marks omitted).

Considering the plea agreement in its entirety, we find no ambiguity. As 

discussed above, the provisions at issue here address different aspects of the deal struck 

by Appellant and the government. Paragraph 4 addresses the extent of the government’s 

obligation to seek a reduction in sentence based on Appellant’s substantial assistance, and 

that is the only topic it addresses. Paragraph 6, by contrast, addresses the government’s 

rights and the procedures to be followed in the event of a breach of the agreement, and 

those are the only topics it addresses. There is nothing confusing, contradictory, or 

otherwise ambiguous about a contract that addresses a party’s contractual rights and 

duties in separate provisions. 

Although the same underlying conduct -- incomplete or untruthful testimony --

could support government action under either paragraph 4 or paragraph 6, that kind of 
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overlap strikes us as common and entirely unremarkable.*

 At most, the overlap might 

have left Appellant uncertain about which of the contractually authorized paths the 

government would take once it concluded that Appellant’s testimony was inadequate –

the government might decline to seek a substantial-assistance reduction, or it might 

declare Appellant to be in breach of contract. But that kind of uncertainty does not make 

a contract ambiguous; a contract is ambiguous only if there is uncertainty about the 

meaning of the contract. In this case, the meaning of the plea agreement is clear. Under 

the plain terms of the agreement, if the government concludes that Appellant did not 

testify truthfully and completely, it may keep the agreement in force and decline to seek a 

substantial-assistance reduction, or it may declare Appellant in breach of the contract and 

seek to release itself from the terms of the agreement. The fact that the plea agreement 

gives the government that option simply does not make the agreement ambiguous. 

III.

“[A] plea agreement allocates risk between the two parties as they see fit. If courts 

disturb the parties’ allocation of risk in an agreement, they threaten to damage the parties’ 

ability to ascertain their legal rights when they sit down at the bargaining table and, more 

problematically for criminal defendants, they threaten to reduce the likelihood that 

prosecutors will bargain away counts . . . .” United States v. Bradley, 400 F.3d 459, 464 

(6th Cir. 2005); see Zuk, 874 F.3d at 407 (“It redounds to the benefit of both criminal 

 * For example, it would not be unusual for an employment contract to

obligate the employer to pay a bonus if the employee hits certain sales targets while also 

giving the employer the right to terminate the employee for not reaching those targets.
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defendants and the government to have flexibility in negotiating the terms of plea 

agreements . . . .”). The plea agreement here is unambiguous, and it clearly permits the 

action taken by the government. Accordingly, we reject Appellant’s invitation to re-write 

the plea agreement, and we hereby affirm his sentence.

AFFIRMED