UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 99-4135

MARILYN S. DELUCA,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Claude M. Hilton, Chief District Judge.

(CR-98-154)

Argued: October 28, 1999

Decided: December 30, 1999

Before NIEMEYER and WILLIAMS, Circuit Judges,

and HAMILTON, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: William Anthony DeStefano, SAUL, EWING, REMICK

& SAUL, Philadelphia, Pennsylvania, for Appellant. Robert Charles

Erickson, Jr., Assistant United States Attorney, Alexandria, Virginia,

for Appellee. ON BRIEF: Maura F. Ratigan, SAUL, EWING, REMICK & SAUL, Philadelphia, Pennsylvania, for Appellant. Helen F.

Fahey, United States Attorney, Daniel L. Bell, II, Assistant United

States Attorney, Robert W. Wiechering, Assistant United States

Attorney, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

On September 22, 1998, Marilyn DeLuca pleaded guilty pursuant

to a plea agreement to one count of mail fraud and aiding and abetting

mail fraud in violation of 18 U.S.C. §§ 2 and 1341. Her plea agreement contained an appellate waiver provision waiving her "right to

appeal any sentence within the maximum provided in the statute(s) of

conviction (or the manner in which that sentence was determined) on

grounds set forth in Title 18, United States Code Section 3742 or on

any ground whatever, in exchange for the concessions made by the

United States" in the plea agreement. (J.A. 139). Marilyn DeLuca's

plea agreement also contained a provision leaving to the government's sole discretion the decision of whether to make a motion pursuant to United States Sentencing Guidelines Manual§ 5K1.1 (1998)

(USSG § 5K1.1) for a reduction in her sentence based upon her substantial assistance to the government. Prior to sentencing, based upon

an alleged oral promise the government made her through her counsel, Marilyn DeLuca made a motion for specific performance of the

plea agreement seeking to force the government to make a USSG

§ 5K1.1 motion. The district court denied her motion for specific performance and sentenced Marilyn DeLuca to eighteen months' imprisonment and three years of supervised release.

On appeal, Marilyn DeLuca challenges the district court's denial of

her motion for specific performance and makes a Fifth Amendment

due process challenge to the district court's finding that the amount

of loss for purposes of determining her offense level under United

States Sentencing Guidelines Manual § 2F1.1 (1998) (USSG

§ 2F1.1), the fraud guideline, is $641,000. The government contends

the appellate waiver provision in her plea agreement precludes Marilyn DeLuca from making either challenge. In response, Marilyn

DeLuca contends the appellate waiver provision is unenforceable on

the ground that she did not knowingly, intelligently, and voluntarily

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agree to it. Alternatively, she argues that the appellate waiver provision, by its terms, does not preclude her from challenging the district

court's denial of her motion for specific performance or the district

court's loss finding with respect to USSG § 2F1.1.

For reasons that follow, we hold that Marilyn DeLuca knowingly,

intelligently, and voluntarily agreed to the appellate waiver provision

contained in her plea agreement, and therefore, hold the provision is

enforceable. We, however, hold that the appellate waiver provision

does not preclude Marilyn DeLuca from challenging the district

court's denial of her motion for specific performance. But on the merits of that issue, we affirm the district court. We also hold that the

appellate waiver provision does not preclude Marilyn DeLuca's due

process challenge, but affirm on the merits of that issue as well.

I.

On July 16, 1998, a federal grand jury in the Eastern District of

Virginia returned a forty-five count indictment charging Robert

DeLuca, his wife Marilyn DeLuca, their son Mark DeLuca, and other

employees of American Property Services with various substantive

offenses, including mail fraud, allegedly committed in connection

with the operation of American Property Services. The indictment

also charged the same defendants with conspiracy to commit various

substantive offenses, including mail fraud. Robert and Marilyn

DeLuca (the DeLucas) owned and operated American Property Services, which also employed their son Mark.

Shortly after the grand jury returned the indictment, the government offered Marilyn DeLuca an opportunity to plead guilty to being

"willfully blind" to the activities alleged in Count Twenty-Five of the

indictment in return for the dismissal of all other counts in which she

was charged and the dismissal of all counts against her son. Count

Twenty-Five charged all of the defendants in the indictment with mail

fraud and aiding and abetting mail fraud in violation of 18 U.S.C.

§§ 2 and 1341.

Marilyn DeLuca entered into a plea agreement with the government on September 16, 1998. The plea agreement incorporated by reference a stipulated statement of facts as the factual basis for Marilyn

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DeLuca's plea. The stipulated statement of facts outlined a fraudulent

scheme whereby Robert DeLuca caused $641,000 to be diverted from

Principal Mutual Life Insurance Corporation (Principal Mutual) to

him. From June 1986 until September 1990, Principal Mutual made

mortgage loans totaling $56.9 million to businesses owned by the

DeLucas. The loans were secured by commercial property owned and

managed by the DeLucas. As part of the mortgage agreement, the

DeLucas agreed to forfeit their rights to collect rents due on these

commercial properties in favor of Principal Mutual in the event their

businesses defaulted on the loans.

By July 1994, the DeLucas' businesses had defaulted on the loans.

Soon thereafter, Principal Mutual rightfully exercised its option to

collect rent from the commercial properties owned by the DeLucas by

notifying the DeLucas and the tenants of those properties that all rent

due should be paid to Principal Mutual.

Thereafter, Robert DeLuca organized and led a scheme intended to

defraud Principal Mutual [of $641,000 as agreed in the stipulated

statement of facts] by persuading the tenants to pay all rents due Principal Mutual directly to him and his wife. Robert DeLuca, his agents,

and employees fraudulently informed the tenants that the DeLucas

would forward the rents they collected to Principal Mutual. After

obtaining the rents from the tenants, Robert DeLuca, his agents, and

employees converted the rents to the DeLucas' own uses. Marilyn

DeLuca admitted that from July 1994 until June 1995,"through her

willful blindness she took part" in this scheme to defraud Principal

Mutual. (J.A. 148). Marilyn DeLuca acknowledged that, pursuant to

this scheme to defraud, "the use of the United States mail in furtherance of the scheme was reasonably foreseeable by her." (J.A. 150).

On September 22, 1998, the district court conducted a hearing pursuant to Federal Rule of Criminal Procedure 11 to accept Marilyn

DeLuca's guilty plea to Count Twenty-Five of the indictment pursuant to the September 16, 1998 plea agreement. After Marilyn DeLuca

pleaded guilty, the government debriefed her about the scheme to

defraud Principal Mutual, but did not believe that she gave truthful

statements. The government also did not believe that Marilyn DeLuca

was forthcoming with respect to every matter discussed during her

debriefing. Because the government did not believe that Marilyn

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DeLuca had been truthful and forthcoming with respect to every matter discussed during the debriefing, the government decided in its sole

discretion not to make a motion for a reduction in her sentence pursuant to USSG § 5K1.1 for rendering substantial assistance to the

government.1 On September 30, 1998, Robert DeLuca pleaded guilty

pursuant to a plea agreement to Count One of the indictment, which

charged conspiracy to commit various substantive offenses and to

defraud the United States.

Upon learning the government intended not to make a motion pursuant to USSG § 5K1.1 on her behalf, Marilyn DeLuca filed a motion

for specific performance seeking to compel the government to make

such a motion. According to Marilyn DeLuca, the government orally

promised as part of the plea agreement to make a USSG § 5K1.1

motion if she pleaded guilty to Count Twenty-Five, allowed herself

to be debriefed, and her husband pleaded guilty. Marilyn DeLuca

argued that she met her end of this bargain, and therefore, the government should be forced to meet its end of the bargain. The government

denied making the oral promise claimed by Marilyn DeLuca regarding making a USSG § 5K1.1 motion and opposed the motion on the

ground that the plea agreement, which contained an integration

clause, left to the government's sole discretion the decision of

whether it would make a motion for a reduction in her sentence pursuant to USSG § 5K1.1. The government also opposed the motion on

the alternative ground that in its good faith view, Marilyn DeLuca

failed to render substantial assistance to the government. Following

the submission of extensive briefs and sworn affidavits regarding the

government's plea negotiations with Marilyn DeLuca, the district

court held a hearing on Marilyn DeLuca's motion for specific performance on February 4, 1999. At the conclusion of the hearing, the district court denied the motion on the ground that the unambiguous

terms of the plea agreement left to the government's sole discretion

the decision of whether to make a motion pursuant to USSG § 5K1.1,

which discretion the government exercised in good faith.

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1 The terms of the plea agreement left to the government's sole discretion the decision of whether to make a motion for a reduction in Marilyn

DeLuca's sentence pursuant to USSG § 5K1.1.

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The district court sentenced Marilyn DeLuca the next day. At the

sentencing hearing, the district court determined Marilyn DeLuca's

sentencing range under the Sentencing Guidelines to be eighteen to

twenty-four months based upon a total offense level of fifteen and a

criminal history category of I. For purposes of determining Marilyn

DeLuca's specific offense characteristics under USSG§ 2F1.1(b)(1),

the district court found that the amount of intended loss under the

fraudulent scheme was $641,000. The district court sentenced Marilyn DeLuca to eighteen months of imprisonment and three years of

supervised release. This timely appeal followed.

II.

We begin our analysis with Marilyn DeLuca's contention that she

did not knowingly, intelligently, and voluntarily agree to the appellate

waiver provision in her plea agreement. Her argument is without

merit.

"A defendant may waive her right to appeal, if that waiver is the

result of a knowing and intelligent decision to forgo the right to

appeal." United States v. Broughton-Jones, 71 F.3d 1143, 1146 (4th

Cir. 1995) (internal quotation marks omitted). In order to determine

whether Marilyn DeLuca knowingly, intelligently, and voluntarily

agreed to the appellate waiver provision contained in her plea agreement, we must examine "the particular facts and circumstances surrounding [the] case, including the background, experience and

conduct of the accused." Id. (internal quotation marks omitted) (alteration in original).

Based upon the record before us, we have no trouble in concluding

that Marilyn DeLuca knowingly, intelligently, and voluntarily agreed

to the appellate waiver provision contained in her plea agreement. At

her hearing pursuant to Federal Rule of Criminal Procedure 11, the

district court established that Marilyn DeLuca was a sophisticated

person with respect to understanding agreements, was represented by

counsel at the time she entered into the plea agreement, and had discussed with her counsel the nature of Count Twenty-Five. Marilyn

DeLuca personally indicated during the Rule 11 colloquy that she

understood the maximum penalties to which she could be subject,

understood that any sentence imposed upon her would be affected by

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the Sentencing Guidelines, and understood that if she did not plead

guilty to Count Twenty-Five she would have certain constitutional

guarantees such as the right to a speedy and public trial on all counts

in the indictment. When the district court specifically questioned her

as to whether she understood that under the appellate waiver provision in her plea agreement she was waiving any right to appeal the

sentence imposed upon her, she indicated that she did. Furthermore,

when the district court specifically questioned her as to whether she

had reviewed the entire plea agreement and as to whether the agreement reflected the entire understanding that she had with the government, she responded yes to both questions. Finally, when the district

court specifically questioned Marilyn DeLuca regarding the voluntariness of her plea, she denied that anyone had made any promise or

threat to induce her to plead guilty.

Viewing all of these circumstances under which Marilyn DeLuca

entered her plea, we conclude that her agreement to the appellate

waiver provision was knowing, intelligent, and voluntary. Our decision in Broughton-Jones, 71 F.3d at 1146, compels this conclusion.

In Broughton-Jones, the defendant challenged the validity of the

appellate waiver provision contained in her plea agreement on the

ground that she did not knowingly, intelligently, and voluntarily agree

to it. See id. The Rule 11 colloquy in Broughton-Jones was identical

in all material respects to the Rule 11 colloquy in this case except that

in Broughton-Jones the district court did not specifically question the

defendant about the appellate waiver provision as the district court did

in this case. See id. Under the circumstances in Broughton-Jones, we

concluded that the defendant's agreement to the appellate waiver provision contained in her plea agreement was knowing, intelligent, and

voluntary. See id. The fact that Marilyn DeLuca personally indicated

in response to questioning by the district court that she understood

that under the appellate waiver provision in her plea agreement she

was waiving any right to appeal the sentence imposed upon her is just

additional evidence, not present in Broughton-Jones, of the knowing,

intelligent, and voluntary nature of her waiver. In sum, we hold that

Marilyn DeLuca's agreement to the appellate waiver provision contained in her plea agreement was knowing, intelligent, and voluntary.

Therefore, the provision is enforceable.

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III.

Having concluded that the appellate waiver provision contained in

Marilyn DeLuca's plea agreement is enforceable, we next address the

government's argument that the same provision precludes her from

challenging the district court's denial of her motion for specific performance. Without deciding whether a defendant can ever validly

waive in a plea agreement his or her right to make a motion for specific performance to force the government to perform its obligations

under a plea agreement, we hold that the language of the appellate

waiver provision in Marilyn DeLuca's plea agreement does not preclude her from challenging the district court's denial of her motion for

specific performance.

Our interpretation of Marilyn DeLuca's plea agreement is guided

by contract law. See United States v. McQueen , 108 F.3d 64, 66 (4th

Cir. 1997); United States v. Peglera, 33 F.3d 412, 413 (4th Cir. 1994).

Thus, we next examine the language of the appellate waiver provision

contained in Marilyn DeLuca's plea agreement to determine whether

it precludes her from challenging the district court's denial of her

motion for specific performance. See id.

The language at issue in the plea agreement is as follows:

The defendant is aware that Title 18, United States Code,

Section 3742 affords a defendant the right to appeal the sentence imposed. Acknowledging all this, the defendant knowingly waives the right to appeal any sentence within the

maximum provided in the statute(s) of conviction (or the

manner in which that sentence was determined) on the

grounds set forth in Title 18, United States Code, Section

3742 or on any ground whatever, in exchange for the concessions made by the United States in this plea agreement.

(J.A. 139). When examined carefully, this language, while broad in

scope, does not preclude Marilyn DeLuca from challenging the district court's denial of her motion for specific performance on the part

of the government. Critically, her agreement to waive her right to

appeal any sentence imposed is in exchange for the concessions made

by the government in the plea agreement. Here, Marilyn DeLuca

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seeks to enforce what she contends is one of those concessions--i.e.,

the government's alleged oral promise as part of the plea agreement

to make a motion for a reduction in her sentence pursuant to USSG

§ 5K1.1 if she pleaded guilty, allowed herself to be debriefed about

the fraudulent scheme, and her husband pleaded guilty. Thus, the

appellate waiver provision does not prevent her from seeking to

enforce this alleged obligation of the government under the agreement. See United States v. Hicks, 129 F.3d 376, 380 (7th Cir. 1997)

(recognizing that when a plea agreement contains an appellate waiver

provision with respect to a defendant's sentence, the "defendant

should be allowed to appeal on the narrow issue of whether the government has breached its responsibilities under the plea agreement").

IV.

Having concluded that the appellate waiver provision does not preclude our review of the district court's denial of Marilyn DeLuca's

motion for specific performance, we now address that issue on the

merits. USSG § 5K1.1 provides:

Upon motion of the government stating that the defendant

has provided substantial assistance in the investigation or

prosecution of another person who has committed an

offense, the court may depart from the guidelines.

(a) The appropriate reduction shall be determined by the

court for reasons stated that may include, but are not

limited to, consideration of the following:

(1) the court's evaluation of the significance and

usefulness of the defendant's assistance, taking into consideration the government's evaluation of the assistance rendered;

(2) the truthfulness, completeness, and reliability

of any information or testimony provided by

the defendant;

(3) the nature and extent of the defendant's assistance;

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(4) any injury suffered, or any danger or a risk of

injury to the defendant or his family resulting

from his assistance;

(5) the timeliness of the defendant's assistance.

Id.

As a general matter, the decision whether to make a motion for a

reduction in a defendant's sentence pursuant to USSG§ 5K1.1 for

rendering substantial assistance to the government is committed to the

unbridled discretion of the government, and no amount of substantial

assistance standing alone will obligate the government to make such

a motion. See United States v. Dixon, 998 F.2d 228, 230 (4th Cir.

1993). We have recognized two limitations, however, on the discretion afforded the government under USSG § 5K1.1: (1) the government may not withhold a USSG § 5K1.1 motion for an

unconstitutional reason; and (2) it may not withhold a USSG § 5K1.1

motion that it is obligated to make by the terms of a valid contractual

agreement with the defendant. See United States v. Wallace, 22 F.3d

84, 87 (4th Cir. 1994). The burden of establishing that the government's refusal to make a USSG § 5K1.1 motion violates one of these

two limitations on its discretion is on the defendant who seeks to

compel the government to make such a motion. See id.; Dixon, 998

F.2d at 230.

Marilyn DeLuca does not argue that an unconstitutional reason

motivated the government's refusal to make a USSG§ 5K1.1 motion

on her behalf. Instead, she seeks to enforce an alleged oral promise

by the government under the plea agreement, attested to by her counsel in an affidavit, that the government would make a USSG § 5K1.1

motion if she pleaded guilty, allowed herself to be debriefed about the

fraudulent scheme, and her husband pleaded guilty. The government

denies it made such a promise.

We reject as being without merit Marilyn DeLuca's challenge to

the district court's denial of her motion for specific performance.

Under our circuit precedent, if the language in a plea agreement "`is

unambiguous as a matter of law, and there is no suggestion of government overreaching of any kind, the agreement should be interpreted

 10
and enforced accordingly.'" United States v. Garcia, 956 F.2d 41, 43

(4th Cir. 1992) (quoting United States v. Harvey , 791 F.2d 294, 300

(4th Cir. 1986)). Here, Marilyn DeLuca's written plea agreement

unambiguously states that it constituted the complete agreement

between the United States, her, and her counsel, and that the United

States had made no promises or representations except as set forth in

writing in her plea agreement. Furthermore, the record contains no

evidence of overreaching on the part of the government with respect

to the plea negotiations between Marilyn DeLuca and the government. The record also does not contain any evidence of bad faith on

the part of the government in refusing to make a USSG § 5K1.1

motion on behalf of Marilyn DeLuca. Finally, when specifically questioned by the district court at her Rule 11 hearing as to whether the

plea agreement reflected the entire understanding that she had with

the government, she responded affirmatively. Under these circumstances, we must enforce the plea agreement as written, see Garcia,

956 F.2d at 43, which left to the government's sole discretion the

decision of whether to make a USSG § 5K1.1 motion for a reduction

of her sentence. Because Marilyn DeLuca has failed to establish an

enforceable promise on the part of the government to make a USSG

§ 5K1.1 motion on her behalf, we affirm the district court's denial of

Marilyn DeLuca's motion for specific performance.

V.

Lastly, Marilyn DeLuca challenges the district court's setting the

loss amount at $641,000 for purposes of sentencing her pursuant to

USSG § 2F1.1 on the ground that it violated her Fifth Amendment

due process right not to be sentenced upon materially false information. She makes such a challenge despite the fact that she stipulated

the fraudulent scheme involved an actual loss to Principal Mutual of

$641,000. She explains that at the time she stipulated to this figure,

neither she nor the government knew that the amount of actual loss

suffered by Principal Mutual was offset by amounts totaling approximately $400,000 that she and her husband spent maintaining the commercial properties involved. If the loss figure is set at $200,000 for

purposes of USSG § 2F1.1, Marilyn DeLuca's sentencing range

would decrease from eighteen to twenty-four months' imprisonment

to ten to sixteen months' imprisonment.

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The Fifth Amendment's Due Process Clause affords a criminal

defendant the right not to be sentenced on materially false information, see United States v. Lee, 540 F.2d 1205, 1210-11 (4th Cir.

1976), and "a defendant's agreement to waive appellate review of his

sentence is implicitly conditioned on the assumption that the proceedings following entry of the plea will be conducted in accordance with

constitutional limitations." United States v. Attar, 38 F.3d 727, 732

(4th Cir. 1994). Thus, to the extent Marilyn DeLuca is alleging a violation of her Fifth Amendment due process right not to be sentenced

upon materially false information, we may review her challenge

despite the appellate waiver provision contained in her plea agreement. Cf. id. at 732-33 (holding appellate waiver provision did not

preclude defendants from challenging their sentences on ground that

the proceedings following entry of their guilty pleas, including their

sentencing hearings, were conducted in violation of their Sixth

Amendment right to counsel).

USSG § 2F1.1(a) provides a base offense level of six. For losses

exceeding $2,000, USSG § 2F1.1(b)(1) provides an enhancement

which is dependant upon the greater of (1) the amount of intended

loss or (2) the amount of actual loss. See USSG § 2F1.1, comment.

(n.8) (providing that for purposes of USSG § 2F1.1(b)(1) "if an

intended loss that the defendant was attempting to inflict can be determined, this figure will be used if it is greater than the actual loss.").

The record shows that in setting the loss figure at $641,000 for purposes of USSG § 2F1.1(b)(1), the district court did not rely upon

materially incorrect information. From our review of the transcript of

the sentencing hearing, we have no doubt that the district court found

that the intended loss to Principal Mutual amounted to $641,000 and

sentenced Marilyn DeLuca under USSG § 2F1.1(b)(1) on that basis.

The district court's intended loss finding is amply supported by the

stipulated fact contained in the plea agreement by Marilyn DeLuca

that "[i]t was part of the scheme to defraud that defendant ROBERT

R. DELUCA would . . . obtain approximately $641,000 from Principal Mutual and the said DeLuca tenants by knowingly and fraudulently persuading the tenants to pay rents directly to the DeLucas or

their business enterprises instead of them paying them directly to

Principal Mutual." (J.A. 148). Because Marilyn DeLuca does not

challenge the accuracy of this stipulated fact concerning her hus-

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band's activities and was willfully blind to the scheme, we cannot

conclude that the district court relied upon materially false information in sentencing Marilyn DeLuca.2

VI.

In sum, we hold: (1) Marilyn DeLuca knowingly, intelligently, and

voluntarily agreed to the appellate waiver provision in her plea agreement; (2) the appellate waiver provision in her plea agreement does

not prevent this court from reviewing her challenge to the district

court's denial of her motion for specific performance; (3) the district

court did not err in denying Marilyn DeLuca's motion for specific

performance; (4) Marilyn DeLuca's due process challenge to the loss

amount found by the district court for purposes of sentencing her pursuant to USSG § 2F1.1 is not precluded by the appellate waiver provision contained in her plea agreement; and (5) the district court's

finding that the intended loss of the scheme to defraud Principal

Mutual is not based upon materially false information. Accordingly,

we affirm the judgment of the district court.

AFFIRMED

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2 To the extent Marilyn DeLuca challenges the district court's use of

the "intended loss" figure as opposed to the alleged lesser "actual loss"

figure for purposes of sentencing her under USSG§ 2F1.1, this challenge

to the district court's application of the Sentencing Guidelines is squarely

foreclosed by the appellate waiver provision in her plea agreement.

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