                            UNPUBLISHED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Affirmed in part; dismissed in part by unpublished per curiam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Unpublished opinions are not binding precedent in this circuit.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.

                                              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




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