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Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Max O. Cogburn, Jr.,
District Judge. (3:09-cr-00177-MOC-2)
Submitted:
Decided:
PER CURIAM:
Harold Gonzalez Roque pled guilty pursuant to a plea
agreement to one count of conspiracy to defraud the Government
by filing false claims, 18 U.S.C. 286 (2006) (Count One), and
conspiracy to defraud the United States, 18 U.S.C. 371
(Count Two).
(2006)
challenge
72-month
the
restitution,
sentence.
sentencing
alleging
On
appeal,
courts
the
Roque
seeks
calculation
Government
to
regarding
breached
the
plea
was
made
in
error,
but
argues
the
error
did
not
Roque counters
agreed
entered
into
plea
pursuant
to
Fed.
R.
agreement
Crim.
P.
in
which
11(c)(1)(B)
the
to
under
USSG
2B1.1(b)
may
be
different
from,
greater
With
(1)
to
contest
conviction
except
for
claims
of
sentencing,
the
district
court
affirmed
the
objected
to
the
PSR.
When
the
district
Neither
court
asked
think its been executed by the parties and its been filed.
Defense counsel stated he had no objections to that motion.
The
on
the
the
court
between
Assistant
noted
the
there
parties
United
was
for
States
a
the
Attorneys
consent
total
judgment
amount
of
Roque
maintains
that
the
Government
of
consent
judgment
that
did
not
exist.
This
He seeks
of
$12.3
million
dollars,
based
on
non-existent
the
Governments
agreement.
Because
Roque
did
not
object
to
13336 (2009); United States v. McQueen, 108 F.3d 64, 6566 & n.
1 (4th Cir. 1997) (citing United States v. Fant, 974 F.2d 559,
565 (4th Cir. 1992)).
error
agreement
review,
was
Roque
breached,
must
but
show
also
not
that
only
the
that
breach
Under
the
plea
was
so
judgment
counters
that
agreement
Roque
signed
fails
to
by
the
parties;
demonstrate
the
however,
it
Governments
When
plea
agreement
5
rests
on
an
agreement
or
promise
that
can
be
said
to
be
part
of
the
inducement
or
United States v.
On the other hand,
Id.
[i]f
the
Government
seeks
personal
money
judgment, the court must determine the amount of money that the
defendant will be ordered to pay.
notes
obligations
that
agreement
it
made
with
judgment.
no
promises
respect
to
or
whether
it
would
in
the
plea
money
seek
arguendo
breach,
that
that
the
Governments
statement,
contrary
statement
to
Roques
specifically
calculated
restitution
P.
32(c)(1)(B)
investigation
court).
no
and
(directing
submit
report
amount
of
See Fed. R.
probation
officer
to
regarding
restitution
conduct
to
the
objections
to
the
probation
6
officers
calculation
of
much less plain error, because the Government did not breach the
plea agreement.
The
Government
seeks
to
appeal
if
enforcement
of
the
plea
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
plea
2005).
obligations
enforce
the
under
waiver
if
the
the
plea
agreement,
record
this
establishes
court
that
(1)
will
the
on
claims
of
ineffective
prosecutorial misconduct.
assistance
of
counsel
and
plea agreement and Roque does not raise an issue outside the
scope of the agreement, the appeal waiver will be enforced.
Accordingly, we dismiss the appeal.
oral
argument
adequately
because
presented
in
the
facts
the
and
materials
legal
before
We dispense with
contentions
the
court
are
and
He does
voluntary.
not
argue
that
his
plea
was
not
knowing
or