                             PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 14-4585


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

GREGORY DEVON OBEY,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   James C. Dever III,
Chief District Judge. (5:12-cr-00268-D-1)


Argued:   May 12, 2015                    Decided:   June 24, 2015


Before MOTZ, KING, and THACKER, Circuit Judges.


Affirmed by published opinion. Judge Motz wrote the opinion, in
which Judge King and Judge Thacker joined.


ARGUED: Scott L. Wilkinson, SCOTT L. WILKINSON & ASSOCIATES,
P.C., Raleigh, North Carolina, for Appellant. Jennifer P. May-
Parker, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.     ON BRIEF: Thomas G. Walker, United
States Attorney, Yvonne V. Watford-McKinney, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
North Carolina, for Appellee.
DIANA GRIBBON MOTZ, Circuit Judge:

      Gregory Devon Obey pled guilty, pursuant to a written plea

agreement, to distribution of cocaine and aiding and abetting in

its   distribution.           The      district      court       sentenced         him    to    240

months’     imprisonment,          and   directed          that       this    sentence         “run

consecutive to any other State or Federal sentence.”                                On appeal,

Obey contends that the Government breached the plea agreement in

making     its   sentencing         recommendation,             and    that       the    district

court    lacked      the     authority     to       order       that    his       sentence     run

consecutively to any future sentence.                            Finding no reversible

error, we affirm.



                                             I.

      In January 2013, a federal jury convicted Obey of multiple

counts involving the distribution of cocaine and cocaine base.

The   district       court    sentenced      him      to    a    total       of    540    months’

imprisonment.         While Obey’s appeal was pending, the Government

filed an unopposed motion to remand the case for a new trial

because    of    a   Giglio       v.   United       States,      405    U.S.       150    (1972),

error.      We granted the motion, vacated Obey’s convictions and

sentence, and remanded the case to the district court for a new

trial.

      On    remand,        Obey    entered      a    plea       of     guilty      to     cocaine

distribution and aiding and abetting in violation of 21 U.S.C.

                                             2
§ 841(a)(1) and 18 U.S.C. § 2.                        In a written plea agreement,

Obey waived his right to appeal and the Government agreed to

recommend an eighteen-year term of imprisonment.                                  At the plea

hearing,          the    district    court   found        that   Obey       had    entered   his

guilty plea freely and voluntarily.

        At       the    sentencing    hearing        in   July    2014,      the    Government

requested that the court impose an eighteen-year sentence, as

stated in the plea agreement.                         The prosecutor explained that

“extensive plea negotiations” between the parties had resulted

in   the         agreed-upon   recommendation.              When      the    district       court

asked about a pending state murder charge, mentioned in Obey’s

presentencing report, the Government responded that the state

case was scheduled for trial in August 2014. 1                               The prosecutor

then addressed the 18 U.S.C. § 3553(a) factors, asserting that

Obey,        a    recidivist,        was   properly        classified         as     a   career

offender,          but    reiterating      the       Government’s       recommendation        of

only eighteen years’ imprisonment.

      Applying           the   sentencing        factors         to   Obey’s        acts,    the

district court determined that “the Government’s request for a

variance lacks merit.”               The court then imposed a sentence of 240

months’ imprisonment, the statutory maximum, and directed that


        1
       At oral argument before us, the parties indicated that no
trial took place on that date, and the case is still pending in
state court.


                                                 3
Obey’s sentence “run consecutive to any other State or Federal

sentence, including any unimposed sentence [Obey] might receive”

for   the   pending     state    murder    charge.      Obey   noted       a    timely

appeal.



                                         II.

      We    first   address     Obey’s     contention   that    the    Government

breached the plea agreement. 2             Obey raises this claim for the

first time on appeal.           Accordingly, we review it only for plain

error.      Puckett v. United States, 556 U.S. 129, 133-34 (2009).

To prevail, Obey must show that an error occurred, that it was

plain,     and   that   it   affected     his   substantial    rights.          United

States v. Martinez, 277 F.3d 517, 524 (4th Cir. 2002).                         Even if

Obey makes this showing, we will correct the error only if it

“seriously       affect[s]      the     fairness,     integrity       or        public

reputation of judicial proceedings.”                 Id. (internal quotation

marks and citation omitted) (alteration in original).

      We apply contract law principles when we construe a plea

agreement.       Thus, “each party should receive the benefit of its

bargain” under the agreement.             United States v. Dawson, 587 F.3d


      2Obey’s appeal waiver does not preclude our consideration
of this claim because “[a] defendant’s waiver of appellate
rights cannot foreclose an argument that the government breached
its obligations under the plea agreement.”     United States v.
Dawson, 587 F.3d 640, 644 n.4 (4th Cir. 2009).


                                          4
640, 645 (4th Cir. 2009) (internal quotation marks and citation

omitted).     By the same token, however, we will not hold the

Government to promises that it did not actually make in the plea

agreement, for neither party is obligated to “provide more than

is specified in the agreement itself.”            Id. (internal quotation

marks and citation omitted).

     An examination of the transcript of the sentencing hearing

reveals that the prosecutor repeatedly urged the district court

to impose the eighteen-year sentence stipulated to in the plea

agreement.         Nevertheless,    Obey     argues   that    the     prosecutor

violated the plea agreement by failing to provide reasons to

support     the    sentence   recommendation.         The    plea     agreement,

however,    did    not   require   the   Government   to    provide    any   such

reasons.     And the Supreme Court has held that the Government is

not obligated to explain its reasons for making a particular

sentencing recommendation unless it agrees to do so in the plea

agreement.        See United States v. Benchimol, 471 U.S. 453, 456

(1985) (per curiam); see also Dawson, 587 F.3d at 645                     (“[I]n

enforcing plea agreements, the government is held only to those

promises that it actually made.” (internal quotation marks and

citation omitted)).

     Relying on United States v. Brown, 500 F.2d 375 (4th Cir.

1974), and United States v. Grandinetti, 564 F.2d 723 (5th Cir.

1977), Obey further argues that the prosecutor undermined the

                                         5
plea   agreement      by     implying    personal     reservations        about    the

sentencing    recommendation.            Brown      and   Grandinetti,      however,

involve very different facts.            In Brown, although the prosecutor

recommended the sentence stipulated in the plea agreement, he

informed the court that he did “have some problems with” the

sentence when asked if he really “believe[d] in it.”                       500 F.2d

at 377.      Similarly, in Grandinetti, the prosecutor admitted to

having    “very    serious        problems”   with    both   the    agreement      and

stipulated    sentence,       stating    that    he   was    “not   too    sure”    of

either its “legality” or “propriety.”                564 F.2d at 725.

       Here, by contrast, the prosecutor neither criticized the

terms of the agreement nor expressed doubt about the legality or

propriety of the recommended sentence.                    In fact, although the

terms of the plea agreement did not require the prosecutor to

state reasons to support the recommendation, he did just that.

In the course of repeating, no fewer than three times, a request

that the court adopt the recommendation, the prosecutor detailed

why the Government had entered into the agreement.

       Thus, the prosecutor explained that the parties had been

involved in “extensive plea negotiations” in reaching the plea

agreement.        He elaborated that in reaching the agreement, the

Government     took        into    account    the     risk    of    retrial,       the

“significant amount” of impeachment evidence available to use

against a cooperating witness at retrial, and that witness’s

                                          6
reluctance      to      testify.          And       the     prosecutor       concluded      by

remarking      that     “taking    those        matters      into    consideration,         we

agreed to this 18 year sentence, and there’s no real rhyme or

reason for coming to 18 years, but that’s where we ended up in

our plea negotiations and we’re asking the Court to adopt that

recommendation.”           Obey    contends          that    the    “rhyme     or    reason”

statement conveyed the prosecutor’s personal reservations about

the plea agreement.            We disagree.          Viewed in context, the remark

simply explained how the plea negotiations ended up at eighteen

years, as opposed to some other number. 3                      For these reasons, we

cannot conclude that the Government breached the plea agreement.



                                           III.

     We    next       consider    Obey’s        remaining      argument      --     that   the

district       court     erred     in     ordering          that    his      sentence      run

consecutively to any future “State or Federal sentence.”                                    In

doing    so,    the    court     relied    on       Setser    v.    United    States,      132


     3 Obey additionally argues that the prosecutor “articulated”
his personal reservations about the plea recommendation by
“arguing sentencing factors in favor of a more severe sentence.”
Appellant’s Br. 11.   But in the plea agreement, the Government
retained its right to offer evidence and information related to
sentencing.   As such, it was not a breach of the agreement to
comment on Obey’s background and prior conduct.      Rather, the
prosecutor “had a duty to bring all relevant information about
[Obey] to the court’s attention at the time of sentencing.”
United States v. Perrera, 842 F.2d 73, 75 (4th Cir. 1988).



                                                7
S. Ct. 1463 (2012).            There, the Supreme Court held a district

court    “has    authority     to     order     that   the    federal    sentence    be

consecutive to an anticipated state sentence that has not yet

been imposed.”          Id. at 1466.

        In reaching that holding, the Setser Court examined the

text of 18 U.S.C. § 3584(a), which addresses a federal court’s

ability     to        order    that     sentences       run     consecutively        or

concurrently.         The statute provides, in pertinent part:

        If multiple terms of imprisonment are imposed on a
        defendant at the same time, or if a term of
        imprisonment is imposed on a defendant who is already
        subject to an undischarged term of imprisonment, the
        terms may run concurrently or consecutively, except
        that the terms may not run consecutively for an
        attempt and for another offense that was the sole
        objective of the attempt.

18 U.S.C. § 3584(a).                The Setser Court noted that § 3584(a)

speaks     to     the     question     of       consecutive     versus    concurrent

sentences only when multiple terms of imprisonment are imposed

at the same time or when the defendant is already subject to an

undischarged term of imprisonment.                 Setser, 132 S. Ct. at 1467.

The   provision       does    not    say,   the    Court     explained,    whether    a

federal sentencing court may impose a sentence consecutive to a

state sentence that is anticipated but that has not yet been

imposed.        Id.     Answering this question in the affirmative, the

Court rejected the contention that § 3584(a) allows a district

court to order a consecutive sentence only in one of the two


                                            8
“common situations” that the provision explicitly mentions.                         Id.

at 1470.       Instead, the Setser Court found it “more natural to

read    § 3584(a)      as    not    containing     an   implied        ‘only,’”    thus

“leaving room for the exercise of judicial discretion in the

situations not covered” by that provision.                  Id.

       Although Setser holds that a district court may run its

sentence consecutive to an anticipated state sentence, it left

open the question of whether a district court may also order its

sentence to run consecutive to an anticipated federal sentence.

See id. at 1471 n.4 (whether “a district court can enter a

consecutive     sentencing         order    in    advance    of    an     anticipated

federal sentence” is a question “not before us”).                         Indeed, as

the    Ninth   Circuit      has    noted,   the   Supreme    Court      suggested     in

dicta that the answer to the latter question might well be “No.”

See United States v. Montes-Ruiz, 745 F.3d 1286, 1291 (9th Cir.

2014) (citing Setser, 132 S. Ct. at 1471 n.4).

       Six years prior to Setser, we held, relying on § 3584(a),

that    a   district    court      lacked   the   authority       to   order   that    a

sentence run consecutive to any future sentence.                          See United

States v. Smith, 472 F.3d 222, 224 (4th Cir. 2006).                               Setser

undoubtedly abrogated Smith as applied to an anticipated state

sentence, but Setser did not abrogate Smith as applied to an

anticipated federal sentence, and may well endorse the Smith



                                            9
approach with respect to anticipated federal sentences. 4                    In any

event, the holding in Smith prohibiting a district court from

ordering that its sentence run consecutively to an anticipated

federal sentence remains controlling precedent in this circuit.

      Relying on it, Obey thus contends that the district court

erred in ordering that his sentence run consecutively to “any

other State or Federal sentence.” (Emphasis added).                     We agree.

But   Obey   did   not    raise   this    contention     before   the    district

court.     Accordingly, as Obey conceded at oral argument, we can

only reverse if we conclude that he meets the rigorous plain

error standard.        And although the district court’s order swept

more broadly than Setser authorizes in requiring that Obey’s

sentence     run   consecutive    to     any    future   sentence,      we   cannot

conclude that this error was plain.

      For an error to be plain, it must be “clear” or “obvious,”

United States v. Olano, 507 U.S. 725, 734 (1993), at least by

the time of appellate consideration, Henderson v. United States,

133   S. Ct.   1121,     1130   (2013).        That   Setser   leaves    intact   a

portion of the logic and holding in Smith is not so obvious as


      4 Emphasizing   the  Setser   Court’s   use  of  the  word
“anticipated,” Obey suggests that Setser’s holding also does not
reach all future state sentences.       Sentences resulting from
proceedings not yet adjudicated are not “anticipated,” he
argues, and so remain unaffected by Setser. We need not resolve
this issue, however, as any error by the district court in
failing to make this distinction was not “plain.”


                                         10
to require reversal.          Until today, no published opinion from

this court had addressed that issue, and the only unpublished

opinion to do so expressly countenanced the district court’s

approach here.     See United States v. Mavroudis, 587 F. App’x 46,

48-49    (4th    Cir.   2014)    (per        curiam)     (noting   that   Setser

“implicitly overruled Smith,” and concluding that the court did

not exceed its authority in running a sentence consecutively to

any future sentence).         In these circumstances, we cannot find

the district court plainly erred. 5



                                     IV.

     For   the    foregoing     reasons,       the     Government’s   motion   to

dismiss is denied, and the judgment of the district court is

                                                                       AFFIRMED.




     5 The Government moved to dismiss Obey’s appeal of this
issue, contending that he waived the claim in his plea
agreement.   Although a defendant of course can waive appellate
review in a plea agreement, such a provision does not waive a
contention that the sentence he received was “beyond the
authority of the district court to impose.”    United States v.
Thornsbury, 670 F.3d 532, 539 (4th Cir. 2012).       Because the
district court exceeded its authority, Obey’s challenge survives
his appeal waiver. Accordingly, we deny the Government’s motion
to dismiss.


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