United States v. Brian Dinning ( 2014 )


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  •                             UNPUBLISHED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    Affirmed in part; dismissed in part by unpublished per curiam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    Unpublished opinions are not binding precedent in this circuit.
    2
    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
    3
    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.
    4
    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
    5
    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)
    6
    (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
    7
    

Document Info

Docket Number: 13-4782, 13-4815

Judges: Gregory, Keenan, Floyd

Filed Date: 6/13/2014

Precedential Status: Non-Precedential

Modified Date: 3/2/2024