United States v. Kennedy , 292 F. App'x 240 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4002
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BRIAN HAROLD KENNEDY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (1:07-cr-00131-JCC-1)
Submitted: August 4, 2008 Decided: September 5, 2008
Before WILKINSON and GREGORY, Circuit Judges, and WILKINS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Jonathan Shapiro, LAW OFFICE OF JONATHAN SHAPIRO, P.C., Fairfax,
Virginia, for Appellant. Chuck Rosenberg, United States Attorney,
James L. Trump, Dennis M. Fitzpatrick, Assistant United States
Attorneys, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pursuant to a written plea agreement, Brian Kennedy pled
guilty to knowingly making a false statement in connection with an
application to purchase a firearm, in violation of 18 U.S.C.
§§ 922(a)(6) and 924(a)(2) (2000), and being a prohibited person in
possession of firearms and ammunition, in violation of 18 U.S.C.
§ 922(g)(3) (2000). Kennedy was sentenced to forty months’
imprisonment. He appeals, arguing the Government breached the plea
agreement and that the district court erred in receiving victim
impact testimony. Finding no reversible error, we affirm.
Kennedy’s arrest and prosecution stemmed from tragic
circumstances initiated by his son, Michael, who, after
experiencing a significant decline in his mental health, stole
seven of Kennedy’s guns, drove to the local police station, and
shot Master Officer Michael Garbarino and Detective Vicki Amel.
Both officers died, and responding officers shot and killed
Michael.
Subsequent to this incident, police officers obtained a
warrant for the Kennedy home, where they found twenty firearms, a
large quantity of ammunition, and marijuana. The police determined
that, approximately fifteen months before his son’s death, Kennedy
had purchased a semi-automatic weapon. In order to purchase this
firearm, Kennedy had to complete ATF Form 4473, in which he swore
he was not an unlawful user of marijuana. According to the
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statement of facts submitted with Kennedy’s plea agreement, this
was a false statement.
The plea agreement detailed the Sentencing Guidelines
stipulations to which the parties agreed. The parties agreed
Kennedy’s base offense level was twenty, pursuant to U.S.
Sentencing Guidelines Manual § 2K2.1(a)(4)(b) (2006) (“USSG”), to
be increased four levels, pursuant to USSG § 2K2.1(b)(1)(B),
because Kennedy unlawfully possessed twenty firearms. The parties
agreed that, while they were bound to the stipulations, the
stipulations were not binding on the probation office or the court.
Prior to completion of Kennedy’s presentence report
(“PSR”), Kennedy’s attorney wrote the Assistant United States
Attorneys prosecuting the case, requesting that they “instruct any
police officer or other government agent who may be contacted by
the probation department . . . not to make any statement either
directly or indirectly offering the view that it was foreseeable to
the defendant that his son would use firearms in connection with
another felony offense.” The United States Attorney’s Office
declined counsel’s request, maintaining any such instruction would
be improper.
In the PSR, the probation officer applied the stipulated
Guidelines, and an additional four-level enhancement, pursuant to
USSG § 2K2.1(b)(6), because it was reasonably foreseeable that the
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firearm Kennedy possessed would be used in connection with another
felony offense (“the enhancement”).
Kennedy objected to the enhancement, arguing it was not
supported by the facts of the case. Although the probation officer
rejected Kennedy’s argument, she indicated that the court could
rely upon a mental health practitioner’s assessment of Michael from
only days before the murders to exclude the enhancement. The
Government responded that it would not pursue a sentence above the
stipulated Guidelines range.
Kennedy filed a motion to strike the PSR, arguing the
probation officer learned the facts supporting the enhancement from
one of the detectives who worked the case, and that the detective’s
statement to the probation officer that the enhancement should
apply constituted a breach of the plea agreement. In the
alternative, Kennedy argued the enhancement should not apply as a
matter of fact.
At sentencing, the district court denied the motion to
strike the PSR. The district court rejected Kennedy’s argument
that communication between the detective and the probation officer
regarding the enhancement constituted a breach of the plea
agreement, and concluded it would have been improper for the
prosecutors to direct the detective not to discuss certain issues
with the probation officer. The district court noted Kennedy
provided no authority for his position that a police officer’s
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honest responses to a probation officer can amount to a breach of
a plea agreement. Despite its rejection of this argument, the
district court did not apply the enhancement.
Prior to pronouncing sentence, the Government called
Suzanne Garbarino, the wife of Master Officer Garbarino, to
testify. Kennedy objected, arguing Officer Garbarino was not a
crime victim under the Crime Victims Reform Act, 18 U.S.C.A. § 3771(West Supp. 2008) (“CVRA”), and thus any victim impact testimony
from his widow would be improper. The district court overruled the
objection.
After hearing the parties’ arguments as to sentencing and
considering the 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2008)
sentencing factors, the district court sentenced Kennedy to forty
months’ imprisonment. This appeal timely followed.
Kennedy’s first argument on appeal is that the
detective’s discussion with the probation officer regarding the
applicability of the enhancement constituted a breach of the plea
agreement attributable to the Government. In evaluating a claim
alleging breach of a plea agreement, we review the district court’s
factual findings for clear error, and issues of law de novo.
United States v. Snow, 234 F.3d 187, 189 (4th Cir. 2000).
Kennedy cites no authority to support his contention that
discussions between the detective and the probation officer that
allegedly violated the plea agreement are imputable to the
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Government. Contra United States v. Contreras, No. 96-30034, 1996
WL 747946, at *2 (9th Cir. Dec. 30, 1996) (rejecting defendant’s
argument that, in permitting police officers working with the
United States Attorney’s Office to provide the probation officer
the drug evidence it had against defendant, the Government breached
the plea agreement). Thus, Kennedy’s argument fails as it lacks a
basis in the law. This result is strengthened by the fact that the
Government repeatedly and unequivocally indicated its position that
the enhancement should not apply. See generally United States v.
Rodriguez-Delma, 456 F.3d 1246, 1251-52 (10th Cir. 2006) (finding
the Government’s consistent and repeated adherence to the terms of
the plea agreement manifested the Government’s “intent to fulfill
its obligations under the plea agreement”). Kennedy’s position is
further undermined by the language of the plea agreement, which
specifically noted the probation office was not bound by the
Guidelines stipulations. The probation office has a duty to
conduct a thorough presentencing investigation, Fed. R. Crim. P.
32(c), and to hold the detective’s conduct violated the plea
agreement would thwart that purpose.
Kennedy next argues the district court improperly
considered Mrs. Garbarino’s testimony. The CVRA defines a “crime
victim” as “a person directly and proximately harmed as a result of
the commission of a Federal offense . . . . In the case of a crime
victim who is . . . deceased, . . . family members . . . may assume
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the crime victim’s rights under this chapter.” 18 U.S.C.A.
§ 3771(e). Kennedy maintains that, in rejecting the enhancement,
the district court determined the murders Michael committed were
not reasonably foreseeable to Kennedy; therefore, the officers were
not “directly and proximately harmed” by Kennedy’s criminal conduct
— lying on an application to obtain a firearm and being a
prohibited person in possession of firearms and ammunition — such
that they would not be considered crime victims under the CVRA.
“Rulings related to admission and exclusion of evidence
are addressed to the sound discretion of the trial judge and will
not be reversed absent an abuse of that discretion.” United States
v. Stitt, 250 F.3d 878, 896 (4th Cir. 2001). A district court
“abuses its discretion when it makes an error of law.” Koon v.
United States, 518 U.S. 81, 100 (1996). Evidentiary rulings are
also subject to review for harmless error under Federal Rule of
Criminal Procedure 52(a), and will be found harmless if the
reviewing court can conclude, “without stripping the erroneous
action from the whole, that the judgment was not substantially
swayed by the error.” United States v. Brooks, 111 F.3d 365, 371
(4th Cir. 1997) (internal quotations and citation omitted); see
also United States v. Patrick, 988 F.2d 641, 647-48 (6th Cir. 1993)
(“[I]mproprieties on the part of sentencing judges are subject to
review under the harmless error rule.”).
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Even if we assume the admission of the victim impact
evidence was erroneous, the error was harmless. There is no
indication in the record that the district court was “substantially
swayed” by Mrs. Garbarino’s testimony. Brooks, 111 F.3d at 371.
The district court fully accepted the Guidelines as stipulated in
the plea agreement, rejecting the enhancement, and sentenced
Kennedy to forty months’ imprisonment, toward the low end of the
applicable Guidelines range. See USSG ch. 5, pt. A, sentencing
table (sentencing range for a total offense level twenty-one and
criminal history category I is thirty-seven to forty-six months’
imprisonment). Moreover, because Mrs. Garbarino simply read the
statement she had already submitted to the court, her testimony was
cumulative.
For the foregoing reasons, we affirm the district court’s
judgment. 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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