United States of America v. Linda Allen Knox

UNPUBLISHED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Dismissed in part; affirmed in part by unpublished per curiam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Unpublished opinions are not binding precedent in this circuit.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

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