United States v. Lopez, 4th Cir. (2010)

UNPUBLISHED
UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
No. 10-4495
UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v.
SULEMA VILLAGRANA LOPEZ,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:09-cr-00013-MR-14)
Submitted:
November 4, 2010
Decided:
December 10, 2010
Before GREGORY, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Heather Golias, LAW OFFICES

Connecticut, for Appellant.
Attorney, Richard Lee Edwards,
Asheville, North Carolina, for
OF HEATHER GOLIAS, New Haven,

Anne M. Tompkins, United States
Assistant United States Attorney,
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Sulema
Villagrana
Lopez
appeals
her
conviction
pursuant to a plea agreement and seventy-eight month sentence

for one count of conspiracy to possess with intent to distribute
cocaine
in
violation
of
21
U.S.C.
845,
841(a)(1)
(2006).
Finding no error, we affirm.

Lopezs
Governments
U.S.
principal
Sentencing
argument
on
Guidelines
appeal
Manual
is
that
5K1.1
the
(2009)
and 18 U.S.C. 3582(c) (2006) motion for a downward departure

did not contain sufficient individualized facts about the level
of assistance Lopez offered for the district court to properly
weigh the degree of assistance given.
From this premise, Lopez
argues
misconduct
flawed
that
the
motion,
Government
her
trial
committed
counsel
was
in
making
constitutionally
ineffective for failing to object to the allegedly defective

motion,
and
the
Government
breached
the
agreement in making the motion as it did. *
terms
of
the
plea
The Government has
filed a brief responding to Lopezs claims and also challenging

the courts jurisdiction over the appeal.
We note that the district court did grant the Governments

downward departure motion, reducing Lopezs offense level by one
level, and then sentencing her at the low end of her revised
advisory Guidelines range.
I.
Jurisdiction
Appeals of sentences are governed by 18 U.S.C. 3742

(2006).
United
States
(4th Cir. 1995).
v.
Hill,
70
F.3d
321,
Section 3742(a) confers jurisdiction on this
court to hear appeals of a sentence if it was:

violation
of
323-24
law;
(2)
imposed
as
result
(1) imposed in
of
an
incorrect
application of the Guidelines; (3) greater than the sentence

specified in the applicable guideline range; (4) imposed for an
offense
for
which
there
plainly unreasonable.
is
no
sentencing
guideline
and
is
18 U.S.C. 3742(a); Hill, 70 F.3d at
323-24.
To the extent, therefore, that an appeal is a challenge
to
amount
the
of
downward
departure,
jurisdiction to hear that appeal.

Even
in
States v.
light
of
Booker,
the
543
Supreme
U.S.
this
court
lacks
See Hill, 70 F.3d at 324.

Courts
220
(2005),
decision
this
in
court
United
lacks
authority to review a sentencing courts decision to depart (and

to
what
degree)
unless
ability to do so.
the
court
failed
to
understand
its
United States v. Brewer, 520 F.3d 367, 371
(4th Cir. 2008).

The Government alleges that this appeal is an attempt
to evade this courts jurisdictional limitations by couching a
challenge
to
downward
departure
in
the
language
of
prosecutorial misconduct and ineffective assistance of counsel.

We do not agree.
Though Lopezs ultimate goal may be to gain

3
greater leniency from a future downward departure motion, the

court does have jurisdiction over the claims that she raises
namely, that the sentence was imposed in violation of the law
because it was the result of prosecutorial misconduct and the
breach of a plea agreement.
II.
Prosecutorial Misconduct
Lopez claims that the Government committed reversible

misconduct by failing to provide individualized facts in its
USSG
5K1.1
and
18
U.S.C.
3582(c)
motion.
Her
claim
is
essentially that had the Government proffered a more detailed

downward adjustment motion, the district court may have been
more willing to depart below the motions recommendation.
To
succeed on a claim of prosecutorial misconduct, the defendant

must
prove
that
the
prosecutions
conduct
was,
in
fact,
improper, and that she was deprived of a fair trial because of

the prejudicial conduct.
191 (4th Cir. 2007).
the
district
court,
United States v. Allen, 491 F.3d 178,
Because Lopez did not raise this claim in

this
court
reviews
for
plain
error,
affirming unless an error was made, the error was plain, and the
error affected Lopezs substantial rights.
See United States v.
Alerre, 430 F.3d 681, 689 (4th Cir. 2005).

Lopez cites to cases from our sister circuits that
have reviewed a district courts ruling on a downward departure
4
motion
to
reasons
e.g.,
ensure
the
explaining
United
court
the
States
offered
degree
v.
of
Johnson,
an
adequate
statement
of
assistance
provided.
33
(5th Cir. 1994);
F.3d
United States v. King, 53 F.3d 589 (3d Cir. 1995).
See,
The merits
of those decisions aside, they do not apply to this case.
Even
if those cases represented the law of this circuit, they impose

a burden on the district court, not the prosecutor.
We cannot,
therefore, find that any plain error was committed in the manner
in which the Government filed its downward departure motion.
III. Ineffective Assistance of Counsel

Lopez
next
argues
that
counsel
was
ineffective
for
failing to object to the supposedly defective downward departure

motion.
Claims of ineffective assistance of counsel generally
are not cognizable on direct appeal.

F.3d 290, 295 (4th Cir. 1997).
United States v. King, 119
Rather, to allow for adequate
development of the record, a defendant generally must bring her

claims in a 28 U.S.C.A. 2255 (West Supp. 2010) motion.
United
States
v.
33
Hoyle,
F.3d
415,
418
Id.;
(4th Cir. 1994).
However, ineffective assistance claims are cognizable on direct

appeal
if
assistance.
the
record
United
conclusively
States
v.
establishes
Richardson,
(4th Cir. 1999); King, 119 F.3d at 295.
195
ineffective
F.3d
192,
198
We have reviewed the record, and because it does not

clearly appear that the downward departure motion was inadequate
or
otherwise
defective,
we
decline
to
hold
that
ineffective
assistance of counsel appears conclusively on the face of the

record.
Accordingly, this claim is not cognizable on direct
review.
IV.
Breach of Plea Agreement
Lopez finally claims that the Government breached the

plea agreement.
Her claim is based on her allegation that the
Government was required to present more individualized facts to

the sentencing court in its motion for a downward departure.
When the defendant raises an issue concerning a breach
of the plea agreement for the first time on appeal, the breach
is reviewed under a plain error standard.
See United States v.
McQueen, 108 F.3d 64, 65-66 (4th Cir. 1997).
In addition to the
requirements for plain error discussed above, the Supreme Court

has recognized that where the effect of an alleged error is
. . . uncertain . . . a defendant cannot meet [her] burden of
showing
rights.
that
the
error
actually
affected
[her]
substantial
Jones v. United States, 527 U.S. 373, 394-95 (1999).

Plea agreements are grounded in contract law, and both
parties should receive the benefit of their bargain.

States v. Bowe, 257 F.3d 336, 345 (4th Cir. 2001).
6
United
Because of
constitutional and supervisory concerns, the government is held

to
greater
degree
of
responsibility
ambiguities in plea agreements.

F.2d
294,
300-01
for
imprecisions
or
United States v. Harvey, 791
(4th Cir. 1986).
Where
an
agreement
is
ambiguous in its terms, the terms must be construed against the

Id. at 303.
government.
government
is
held
only
However, in enforcing agreements, the

to
those
promises
it
actually
made.
United States v. Dawson, 587 F.3d 640, 645 (4th Cir. 2009).
Here, the plea agreement stated that if Lopez offered
assistance,
[t]he
United
States,
in
its
sole
discretion,
[would] determine whether the assistance has been substantial.

The agreement continued, stating that [u]pon a determination
that
the
defendant
has
rendered
substantial
assistance,
the
government may make a motion pursuant to [USSG] 5K1.1[.]
The
Government argues that the agreement does not, by its terms,

require them to file a downward departure motion, and that in
any event, the Government did file such a motion.
Again,
Governments
without
downward
conclude
that
required
to
because
file
reaching
departure
the
the
motion
Government
motion,
no
dubious
breach
was
was
of
claim
that
insufficient,
not,
the
in
plea
any
the
we
event,
agreement
occurred.
Accordingly, we affirm the judgment of the district
court.
We dispense with oral argument because the facts and

7
legal
before
contentions
the
court
are
adequately
and
argument
presented
would
not
in
aid
the
the
materials
decisional
process.
AFFIRMED

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UNPUBLISHED

UNITED STATES COURT OF APPEALS

UNITED STATES OF AMERICA,

December 10, 2010

Before GREGORY, SHEDD, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Heather Golias, LAW OFFICES

OF HEATHER GOLIAS, New Haven,

Unpublished opinions are not binding precedent in this circuit.

pursuant to a plea agreement and seventy-eight month sentence

Finding no error, we affirm.

and 18 U.S.C. 3582(c) (2006) motion for a downward departure

From this premise, Lopez

ineffective for failing to object to the allegedly defective

agreement in making the motion as it did. *

The Government has

filed a brief responding to Lopezs claims and also challenging

We note that the district court did grant the Governments

Appeals of sentences are governed by 18 U.S.C. 3742

(4th Cir. 1995).

Section 3742(a) confers jurisdiction on this

court to hear appeals of a sentence if it was:

application of the Guidelines; (3) greater than the sentence

18 U.S.C. 3742(a); Hill, 70 F.3d at

To the extent, therefore, that an appeal is a challenge

jurisdiction to hear that appeal.

See Hill, 70 F.3d at 324.

authority to review a sentencing courts decision to depart (and

United States v. Brewer, 520 F.3d 367, 371

(4th Cir. 2008).

prosecutorial misconduct and ineffective assistance of counsel.

Though Lopezs ultimate goal may be to gain

greater leniency from a future downward departure motion, the

Lopez claims that the Government committed reversible

essentially that had the Government proffered a more detailed

succeed on a claim of prosecutorial misconduct, the defendant

improper, and that she was deprived of a fair trial because of

United States v. Allen, 491 F.3d 178,

Because Lopez did not raise this claim in

See United States v.

Alerre, 430 F.3d 681, 689 (4th Cir. 2005).

(5th Cir. 1994);

United States v. King, 53 F.3d 589 (3d Cir. 1995).

of those decisions aside, they do not apply to this case.

if those cases represented the law of this circuit, they impose

III. Ineffective Assistance of Counsel

failing to object to the supposedly defective downward departure

Claims of ineffective assistance of counsel generally

are not cognizable on direct appeal.

United States v. King, 119

Rather, to allow for adequate

development of the record, a defendant generally must bring her

(4th Cir. 1994).

However, ineffective assistance claims are cognizable on direct

(4th Cir. 1999); King, 119 F.3d at 295.

We have reviewed the record, and because it does not

assistance of counsel appears conclusively on the face of the

Accordingly, this claim is not cognizable on direct

Breach of Plea Agreement