UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4458
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MICHAEL ANTHONY KENNEDY,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry M. Herlong, Jr., District
Judge. (6:05-cr-00815-HMH-1)
Submitted: October 23, 2006 Decided: November 13, 2006
Before WILKINSON and WILLIAMS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
J. Falkner Wilkes, CRAVEN & WILKES, Greenville, South Carolina, for
Appellant. Reginald I. Lloyd, United States Attorney, Regan A.
Pendleton, Assistant United States Attorney, Greenville, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Michael Anthony Kennedy pled guilty pursuant to a plea
agreement to one count of conspiracy to manufacture and possess
with intent to distribute five kilograms or more of cocaine and
fifty or more grams of cocaine base (“Count I”), and one count of
conspiracy to possess with intent to distribute a quantity of
marijuana (“Count II”), in violation of 21 U.S.C. § 846 (2000).
Kennedy appeals his conviction and sentence, arguing that the
district court’s failure to discuss his plea agreement at the Rule
11 hearing requires this court to reverse and set aside his
sentence. We affirm.
Kennedy's plea agreement provided that should Kennedy
cooperate pursuant to the terms of the plea agreement and if his
cooperation was deemed by the Government as providing “substantial
assistance in the investigation or prosecution of another person
who has committed an offense,” the Government agreed to move for a
reduction of sentence.
Prior to sentencing, the Government expected Kennedy to
testify against his younger sister, who was one of the other
individuals in the eighteen-defendant conspiracy in which he was
charged and convicted. When Kennedy refused to testify truthfully
against his younger sister, the Government informed him that it
would not move for a downward departure on his behalf.
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The district court ultimately sentenced Kennedy to 324
months in prison as to Count I, and sixty months in prison as to
Count II, both terms to run concurrently; five years of supervised
release as to Count I and two years of supervised release as to
Count II, both terms to run concurrently for a total of five years
of supervised release; and ordered payment of a $200 statutory
assessment fee.*
Kennedy’s counsel appealed his conviction and sentence on
the ground that the district court failed to comply with Fed. R.
Crim. P. 11 in accepting Kennedy’s plea. While it is not disputed
by Kennedy that the district court generally complied with the
requirements of Rule 11, Kennedy claims that the parties’ failure
to disclose his plea agreement during the Rule 11 hearing is ground
for having his conviction and sentence reversed.
Kennedy did not move in the district court to withdraw
his guilty plea, and his challenge to the adequacy of the Rule 11
hearing is, therefore, reviewed for plain error. See United States
v. Martinez, 277 F.3d 517, 526 (4th Cir. 2002). We have carefully
reviewed the transcript of the Rule 11 hearing and find that the
district court generally complied with Rule 11 in its acceptance of
Kennedy’s guilty plea.
*
The probation officer calculated a sentencing guideline range
for Kennedy of 324 to 405 months’ imprisonment founded on a total
offense level of 41 and a criminal history category of I.
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We do find, and the Government concedes, that the parties
failed to disclose Kennedy's plea agreement during the Rule 11
hearing, that this omission was error, and that the error was
plain. United States v. Olano, 507 U.S. 725, 731-32 (1993). We
conclude, however, that the error did not affect Kennedy's
substantial rights. First, Kennedy does not allege that but for
the Rule 11 error, he would not have pled guilty. Rather,
Kennedy’s counsel merely states that Kennedy "apparently relied on
the agreement and potential for a downward departure as inducement
for the plea." This assertion does not meet the standard set forth
in Martinez. See 277 F.3d at 532-33 (holding that, to prove that
an error affected his substantial rights, the defendant must show
that he would not have pled guilty but for that error).
Moreover, the plea agreement specifically provided that
Kennedy was required to cooperate with the Government in its
prosecution of other persons and that the Government would only
agree to move for a downward departure if, in its sole discretion,
it determined Kennedy's assistance was “substantial.” Even if the
Government did agree to move for a downward departure, however, the
matter of Kennedy's sentencing remained within the sole discretion
of the district court. Accordingly, even assuming the Government
had moved for a downward departure on Kennedy's behalf, whether the
district court would have granted the motion is speculative, at
best.
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Because Kennedy has not made the required showing under
Olano, 507 U.S. at 734, we affirm Kennedy’s conviction and
sentence. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
AFFIRMED
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