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No. 13-4782
No. 13-4815
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:
Decided:
PER CURIAM:
In these consolidated cases, Brian Ray Dinning seeks
to
appeal
the
150-month
sentence
imposed
after
he
pleaded
The Government
his
sentence
should
be
dismissed
based
on
the
waiver
of
plea
that
agreement
certain
enhancements
particular,
the
characteristic
parties
contained
included
specific
were
offense
or
were
stipulated
in
U.S.
the
parties
characteristics
not
that
nonbinding
applicable.
the
Sentencing
and
In
specific
offense
Guidelines
Manual
involve
misrepresentation
that
any
provision
that
bound
Dinning
was
acting
on
partys
sentencing
argument or recommendation.
In
the
presentence
report,
the
probation
officer
apply.
objected
to
the
application
of
this
enhancement.
At
the
did not apply the two-point enhancement, but noted its belief
that the record contained sufficient evidence to support it.
With
Dinnings
advisory
Guidelines
range
set
at
seventy
to
an
appropriate
sentence.
Dinning
advocated
downward
Dinning
misused
charitable
organizations
in
considering
of
months,
150
noting
that
Dinning
had
abused
his
victims
charitable wishes.
On
appeal,
Dinning
argues
that
the
Governments
plea
agreement,
we
review
for
4
plain
error.
Puckett
v.
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
Id.
United
States v. Yoohoo Weon, 722 F.3d 583, 588 (4th Cir. 2013).
The
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
Accordingly, finding no
issues
agreement.
Cir.
raised
on
appeal
fall
within
the
scope
of
the
2005).
The
waiver
in
this
case
provides
that
Dinning
outside
the
scope
of
any
appeal
waiver.
This
class
v.
when
the
Poindexter,
plea
492
agreement
F.3d
6
263,
was
270
executed,
(4th
Cir.
United
2007)
(internal
quotation
marks
omitted),
and
involves
fundamental
authority,
claiming
that
sentence
was
based
on
United States
We conclude