UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 12-4882

UNITED STATES OF AMERICA,

Plaintiff- Appellee,

v.

LINDA ALLEN KNOX,

Defendant - Appellant.

Appeal from the United States District Court for the Western 

District of North Carolina, at Asheville. Martin K. Reidinger, 

District Judge. (1:10-cr-00086-MR-DLH-1)

Submitted: June 27, 2013 Decided: July 18, 2013

Before WILKINSON, KING, and GREGORY, Circuit Judges.

Dismissed in part; affirmed in part by unpublished per curiam 

opinion.

Christian E. Dysart, DYSART LAW, Raleigh, North Carolina, for 

Appellant. Anne M. Tompkins, United States Attorney, Melissa L. 

Rikard, Assistant United States Attorney, Charlotte, North 

Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Linda Allen Knox pled guilty to mail fraud and aiding 

and abetting in violation of 18 U.S.C.A. § 1341 (West Supp. 

2013), and 18 U.S.C. § 2 (2006), and was sentenced to a term of 

thirty-three months’ imprisonment. Knox appeals her sentence, 

contending that the waiver of appeal rights in her plea 

agreement is unenforceable because the government breached the 

plea agreement by arguing at sentencing for a greater amount of 

loss than that stipulated in the plea agreement, that the 

district court clearly erred in determining the amount of loss, 

and that she received ineffective assistance of counsel in 

connection with the plea negotiations. We affirm in part and 

dismiss in part.

This court “will not enforce an otherwise valid appeal 

waiver against a defendant if the government breached the plea 

agreement containing that waiver.” United States v. Cohen, 459 

F.3d 490, 495 (4th Cir. 2006). “It is settled that a 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 Knox did not raise this issue in the district 

court, it is reviewed for plain error. Puckett v. United 

States, 556 U.S. 129, 133-34 (2009). To prevail under this 

standard, Knox must show not only that the government plainly 
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breached the plea agreement, but also that he was prejudiced by 

the error and that “the breach was so obvious and substantial 

that failure to notice and correct it affected the fairness, 

integrity or public reputation of the judicial proceedings.” 

United States v. McQueen, 108 F.3d 64, 65-66 (4th Cir. 1997) 

(internal quotation marks and alteration omitted); see United 

States v. Dawson, 587 F.3d 640, 645 (4th Cir. 2009). Plea 

agreements are grounded in contract law, and both parties should 

receive the benefit of their bargain. United States v. Chase, 

466 F.3d 310, 314 (4th Cir. 2006). 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 (1971). 

After reviewing the record, we conclude that the 

government did not breach the plea agreement, but argued that 

the loss was within the range stipulated in the plea agreement. 

The district court determined that the loss was an amount within 

that range and ordered restitution in an amount lower than the 

stipulated amount. Knox acknowledges that her waiver of 

appellate rights was knowing and intelligent, and we are 

satisfied that the waiver is enforceable. Therefore, the waiver 

bars consideration of the sentencing issues Knox seeks to raise.

Claims of ineffective assistance of counsel generally 

are not cognizable on direct appeal. United States v. Benton, 

523 F.3d 424, 435 (4th Cir. 2008); United States v. King, 119 
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F.3d 290, 295 (4th Cir. 1997). Instead, to allow for adequate 

development of the record, a defendant must bring her claims in 

a 28 U.S.C.A. § 2255 (West Supp. 2013) motion. King, 119 F.3d 

at 295. However, such claims will be entertained on direct 

appeal if the record conclusively establishes ineffective 

assistance. United States v. Richardson, 195 F.3d 192, 198 (4th 

Cir. 1999). In this case, the record does not conclusively 

demonstrate that Knox’s counsel was ineffective.

We therefore affirm Knox’s conviction and dismiss 

Knox’s appeal of her sentence. 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 IN PART;

AFFIRMED IN PART