United States of America v. Christopher William Oden

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4119
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CHRISTOPHER WILLIAM ODEN,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. John Preston Bailey,
Chief District Judge. (3:11-cr-00056-JPB-DJJ-1)
Submitted: August 16, 2012 Decided: August 24, 2012
Before MOTZ and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Stephen D. Herndon, Wheeling, West Virginia, for Appellant.
William J. Ihlenfeld, II, United States Attorney, Erin K.
Reisenweber, Assistant United States Attorney, Martinsburg, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Christopher William Oden pled guilty pursuant to a
plea agreement to one count of possession of child pornography,
in violation of 18 U.S.C. § 2252A(a)(5) (2006). He was
sentenced to the statutory maximum ten year sentence. On
appeal, Oden claims that the Government breached the plea
agreement by not recommending a sentence at the low end of the
Sentencing Guidelines’ range of imprisonment. The Government
contends it was not obligated to make the recommendation because
Oden did not fulfill the terms of the agreement. The Government
further contends that because Oden agreed to waive his right to
appeal any sentence within the statutory maximum, the appeal
should be dismissed. Because we conclude that the Government
did not breach the plea agreement and that the appeal waiver
should be enforced, we dismiss the appeal.
Oden entered into a plea agreement in which he was
informed that the maximum statutory sentence was ten years’
imprisonment. The plea agreement contained the following
provisions that are relevant to this appeal: (1) Oden would be
forthright and truthful with regard to all inquiries made of
him, and (2) he would give timely and complete information about
his criminal involvement. Oden also acknowledged that he would
receive the benefit of a reduction to his offense level if he
accepted responsibility. Oden was aware that if, “in the

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opinion of the United States,” (Joint Appendix at 46), Oden
failed to cooperate as promised, the Government was not
obligated to recommend a sentence at the low end of the
Guidelines.
At sentencing, the Government stated that it was not
going to recommend a sentence at the low end of the Guidelines
because it was of the opinion that Oden had not taken
responsibility for his criminal conduct and that there were
discrepancies and omissions in Oden’s account of what occurred.
Because Oden did not object to the Government’s
recommendation as a breach of the plea agreement, this court’s
review is for plain error. Puckett v. United States, 556 U.S.
129, 133-36 (2009); United States v. McQueen, 108 F.3d 64, 65-66
& n.1 (4th Cir. 1997) (citing United States v. Fant, 974 F.2d
559, 565 (4th Cir. 1992)). “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). Under plain error review, Oden must show not only that
the plea agreement was breached, but also that “the breach was
‘so obvious and substantial that failure to notice and correct
it affect[ed] the fairness, integrity or public reputation of
the judicial proceedings.’” McQueen, 108 F.3d at 66 & n.4
(quoting Fant, 974 F.2d at 565).

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We conclude that there was no error, much less plain
error. Our review of the record supports the Government’s
findings regarding Oden’s agreement to take responsibility for
his conduct and to be forthright and truthful. Because Oden did
not fulfill his obligations under the agreement, the Government
was not obligated to recommend a sentence at the low end of the
Guidelines. Accordingly, there was no breach by the Government.
The Government seeks enforcement of the appeal waiver
in the plea agreement. A criminal defendant may waive the right
to appeal if that waiver is knowing and intelligent. United
States v. Poindexter, 492 F.3d 263, 270 (4th Cir. 2007).
Generally, if the district court fully questions a defendant
regarding the waiver of his right to appeal during a plea
colloquy performed in accordance with Rule 11, the waiver is
both valid and enforceable. United States v. Johnson, 410 F.3d
137, 151 (4th Cir. 2005). Whether a defendant validly waived
his right to appeal is a question of law this court reviews de
novo. United States v. Blick, 408 F.3d 162, 168 (4th Cir.
2005). Where the Government seeks to enforce an appeal waiver
and there is no substantiated claim that the Government breached
its obligations under the plea agreement, this court will
enforce the waiver if the record establishes that (1) the
defendant knowingly and intelligently agreed to waive the right

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to appeal, and (2) the issue being appealed is within the scope
of the waiver. Id. at 168 & n.5.
Oden waived his right to appeal any sentence within
the maximum provided by statute. This portion of the plea
agreement was reviewed at the Rule 11 hearing and Oden
acknowledged that he agreed to the provision. On appeal, Oden
argues that the appeal waiver is not enforceable because the
Government breached the plea agreement.
Because the Government did not breach the plea
agreement and Oden does not raise an issue outside the scope of
the agreement, the appeal waiver will be enforced.
Accordingly, we dismiss the appeal. 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

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