United States v. Darrell K. Brown, A/K/A Stewart Tyrone Martin, A/K/A Martin Stewart, A/K/A Byron McIntyre, 99 F.3d 1131, 4th Cir. (1996)

99 F.
3d 1131
NOTICE: Fourth Circuit Local Rule 36(c) states that citation

of unpublished dispositions is disfavored except for establishing
res judicata, estoppel, or the law of the case and requires
service of copies of cited unpublished dispositions of the Fourth
Circuit.
UNITED STATES of America, Plaintiff-Appellee,
v.
Darrell K. BROWN, a/k/a Stewart Tyrone Martin, a/k/a
Martin
Stewart, a/k/a Byron McIntyre, Defendant-Appellant.
No. 95-5821.
United States Court of Appeals, Fourth Circuit.

Submitted Aug. 27, 1996.
Decided Oct. 23, 1996.
James K. Bredar, Federal Public Defender, Mark R. Wagner, Assistant

Federal Public Defender, Greenbelt, Maryland, for Appellant.
Lynne A. Battaglia, United States Attorney, Sandra Wilkinson, Assistant
United States Attorney, Maury Epner, Assistant United States Attorney,
Greenbelt, Maryland, for Appellee.
D.Md.
AFFIRMED.
Before RUSSELL, WIDENER, and MOTZ, Circuit Judges.
OPINION
PER CURIAM:
Darrell K. Brown seeks to appeal the 24-month sentence imposed on him after
he pled guilty to conspiracy to commit bank fraud, 18 U.S.C.A. 371 (West
1966 & Supp.1996), pursuant to a plea agreement. He contends that the

government breached the plea agreement when it failed to recommend a
sentence at the low end of the guideline range at his sentencing hearing and
requests resentencing with specific performance. We find that the government's
breach was triggered by Brown's own failure to honor his obligations under the
agreement. Consequently, Brown is not entitled to resentencing and we affirm
the sentence.1
2
Brown's plea agreement provided that the government would move for a
sentence at the low end of the guideline range. The agreement did not obligate
Brown to cooperate; however, it did require that he "not commit any offense in
violation of federal, state or local law" between the date of the agreement and
his sentencing. The probation officer recommended a guideline range of 18-24
months. However, between the time Brown entered his guilty plea and the date
of sentencing, the government became convinced that Brown had lied during
plea negotiations when he identified a woman photographed with him making a
fraudulent transaction at an ATM machine as a transsexual either dead or dying
of AIDS, whom he could not identify or locate. The government presented
evidence at the sentencing hearing that the woman was Brown's sister, Regina
Brown-Thompson, and asked for an adjustment for obstruction of justice.2 The
district court declined to make the obstruction of justice adjustment, but
expressed its belief that Brown had indeed lied, and sentenced him to a term of
24 months, the top of the guideline range. Apart from arguing for the
obstruction of justice adjustment, the government did not make a
recommendation concerning the sentence at the hearing. Brown requests
resentencing with specific performance under Santobello v. New York, 404
U.S. 257 (1971) (promise which induces guilty plea must be fulfilled).
The government is relieved of its obligations under a plea agreement if the

court which accepted the agreement finds that the defendant has failed to carry
out his obligation. United States v. Simmons, 537 F.2d 1260, 1261 (4th
Cir.1976). In this case, the district court found that, to conceal his sister's
involvement, Brown lied to the government after he signed the plea agreement
on May 18, 1995,3 and continued to lie during the sentencing proceeding. Thus,
the government's failure to recommend a sentence at the low end of the
guideline range does not require that Brown be resentenced.
We therefore affirm the 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.
AFFIRMED
Brown's plea agreement contained a provision by which he waived all rights to

appeal any sentence imposed unless the district court departed above the
guideline range. Because of the parties' mutual breach of the agreement, we
find the waiver inoperative
United States Sentencing Commission, Guidelines Manual 3C1.1 (Nov.1994)
Brown entered his plea in the district court on June 9, 1995

United States v. Darrell K. Brown, A/K/A Stewart Tyrone Martin, A/K/A Martin Stewart, A/K/A Byron McIntyre, 99 F.3d 1131, 4th Cir. (1996)

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99 F.

NOTICE: Fourth Circuit Local Rule 36(c) states that citation

United States Court of Appeals, Fourth Circuit.

James K. Bredar, Federal Public Defender, Mark R. Wagner, Assistant

1966 & Supp.1996), pursuant to a plea agreement. He contends that the

The government is relieved of its obligations under a plea agreement if the

Brown's plea agreement contained a provision by which he waived all rights to

United States Sentencing Commission, Guidelines Manual 3C1.1 (Nov.1994)

Brown entered his plea in the district court on June 9, 1995

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