United States v. Brian Dinning , 576 F. App'x 149 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4782
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BRIAN RAY DINNING,
Defendant - Appellant.
No. 13-4815
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BRIAN RAY DINNING,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of Virginia, at Norfolk. Raymond A. Jackson, District
Judge. (2:12-cr-00140-RAJ-1; 2:12-cr-00084-RAJ-LRL-1)
Submitted: May 29, 2014 Decided: June 13, 2014
Before GREGORY, KEENAN, and FLOYD, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Patricia Palmer Nagel, THE LAW OFFICES OF PATRICIA PALMER NAGEL,
PLC, Williamsburg, Virginia, for Appellant. Dana J. Boente,
Acting United States Attorney, Stephen W. Haynie, Elizabeth M.
Yusi, Assistant United States Attorneys, Norfolk, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
In these consolidated cases, Brian Ray Dinning seeks
to appeal the 150-month sentence imposed after he pleaded
guilty, pursuant to a written plea agreement, to one count of
wire fraud, 18 U.S.C. § 1343 (2012), and one count of bank
fraud, 18 U.S.C. § 1344 (2012). On appeal, Dinning argues that
the Government breached the plea agreement during its rebuttal
argument at sentencing. He further contends that his sentence
is procedurally and substantively unreasonable. The Government
responds that no such breach occurred, and that Dinning’s appeal
of his sentence should be dismissed based on the waiver of
appellate rights contained in the plea agreement.
The plea agreement included the parties’ nonbinding
stipulation that certain specific offense characteristics and
sentencing enhancements were or were not applicable. In
particular, the parties stipulated that the specific offense
characteristic contained in U.S. Sentencing Guidelines Manual
§ 2B1.1(b)(9)(A) (2012) did not apply because the offense did
not involve a misrepresentation that Dinning was acting on
behalf of a charitable organization. The plea agreement did not
contain any provision that bound either party’s sentencing
argument or recommendation.
In the presentence report, the probation officer
recommended that the charitable organization enhancement should
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apply. Prior to sentencing, both Dinning and the Government
objected to the application of this enhancement. At the
sentencing hearing, the Government refused to present evidence
supporting the charitable organization enhancement and continued
its objection. The district court sustained the objections and
did not apply the two-point enhancement, but noted its belief
that the record contained sufficient evidence to support it.
With Dinning’s advisory Guidelines range set at seventy to
eighty-seven months without the enhancement, the parties argued
for an appropriate sentence. Dinning advocated a downward
variance sentence of thirty months. In its rebuttal argument,
the Government stated that the district court could consider
that Dinning misused charitable organizations in considering
whether to sentence Dinning at the high end of the Guidelines
range. The district court imposed an upward variance sentence
of 150 months, noting that Dinning had abused his victims’
charitable wishes.
On appeal, Dinning argues that the Government’s
argument breached the plea agreement because the plain language
of the agreement prohibited the Government from arguing during
any portion of the sentencing hearing that the offense involved
misuse of charitable organizations. Because Dinning did not
assert before the district court that the Government breached
the plea agreement, we review for plain error. Puckett v.
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United States, 556 U.S. 129, 133-34 (2009). Accordingly,
Dinning must show not only that the Government plainly breached
his 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 affect[s] the fairness, integrity or
public reputation of the judicial proceedings.” United States
v. McQueen, 108 F.3d 64, 66 (4th Cir. 1997) (internal quotation
marks omitted).
“The interpretation of plea agreements is guided by
contract law, and parties to the agreement should receive the
benefit of their bargain.” Id. We “apply the plain meaning of
the agreement’s terms” in order to achieve that goal. United
States v. Yoohoo Weon, 722 F.3d 583, 588 (4th Cir. 2013). The
Government breaches a plea agreement when a promise it made to
induce the plea remains unfulfilled. Santobello v. New York,
404 U.S. 257, 262 (1971). However, “the government is held only
to those promises that it actually made, and the government’s
duty in carrying out its obligations under a plea agreement is
no greater than that of fidelity to the agreement.” United
States v. Dawson, 587 F.3d 640, 645 (4th Cir. 2009) (internal
quotation marks omitted).
Our review of the record leads us to conclude that the
Government did not plainly breach the plea agreement. The
section of the plea agreement containing the disputed language
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specifically referred to Fed. R. Crim. P. 11(c)(1)(B), regarding
nonbinding Guideline provision recommendations, and was prefaced
with language stating that the parties had agreed that certain
specific offense characteristics were or were not applicable.
The agreement does not contain a provision purporting to bind
the Government’s sentencing recommendation or the arguments it
could use to support its recommendation. Finally, the document
contained an integration clause stating that it represented the
entire agreement between the parties. Accordingly, finding no
support for Dinning’s claim of breach, we affirm his conviction.
When the government seeks to enforce an appeal waiver
and did not breach its obligations under the plea agreement, we
will enforce the waiver if it was knowing and intelligent and
the issues raised on appeal fall within the scope of the
agreement. United States v. Blick, 408 F.3d 162, 168-69 (4th
Cir. 2005). The waiver in this case provides that Dinning
waived his right to appeal any sentence within the statutory
maximum or the manner in which the sentence was determined, and
Dinning does not challenge its validity.
We have identified a “narrow class of claims” that
fall outside the scope of any appeal waiver. This class
includes “errors that the defendant could not have reasonably
contemplated when the plea agreement was executed,” United
States v. Poindexter, 492 F.3d 263, 270 (4th Cir. 2007)
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(internal quotation marks omitted), and involves “fundamental
issues — such as challenges claiming a district court exceeded
its authority, claiming that a sentence was based on a
constitutionally impermissible factor such as race, or claiming
a post-plea violation of the right to counsel.” United States
v. Thornsbury, 670 F.3d 532, 539 (4th Cir. 2012). We conclude
that Dinning’s arguments are not among this “narrow class of
claims.” His assertions that his sentence is procedurally and
substantively unreasonable fall squarely within the scope of the
appellate waiver and are precisely the arguments his appellate
waiver contemplated.
Accordingly, while we affirm Dinning’s convictions, we
dismiss the appeals of his sentence. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the material before this court and argument will
not aid the decisional process.
AFFIRMED IN PART;
DISMISSED IN PART
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