United States v. Loc Huu Bui ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-5123
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LOC HUU BUI, a/k/a Lance Bui,
Defendant - Appellant.
No. 11-5124
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
NGHI HUU BUI, a/k/a Anthony Bui,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan,
District Judge. (5:10-cr-00205-FL-1; 5:10-cr-00205-FL-2)
Submitted: July 3, 2012 Decided: July 12, 2012
Before GREGORY, SHEDD, and WYNN, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Seth A. Neyhart, STARK LAW GROUP, PLLC, Chapel Hill, North
Carolina; G. Ryan Willis, WILLIS & JOHNSON, PLLC, Raleigh, North
Carolina, for Appellants. Jennifer P. May-Parker, Assistant
United States Attorney, Kristine L. Fritz, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Loc Huu Bui and Nghi Huu Bui pled guilty, pursuant to
written plea agreements, to conspiracy to commit bank fraud, in
violation of 18 U.S.C. §§ 1349, 1344 (2006), and aggravated
identity theft, in violation of 18 U.S.C. § 1028A (2006). They
now seek to appeal their convictions and sentences, arguing the
district court violated Fed. R. Crim. P. 11(c)(5) at sentencing
and incorrectly calculated their Guidelines range, thus imposing
procedurally unreasonable sentences. The Government has moved
to dismiss the appeals as barred by the Buis’ waivers of the
right to appeal included in their plea agreements.
Upon review of the plea agreements and the transcript
of the Rule 11 hearing, we conclude that the Buis knowingly and
voluntarily waived their rights to appeal their sentences and
that, to the extent they question the reasonableness of their
sentences on appeal, those challenges fall squarely within the
scope of their waivers of appellate rights. We are not
persuaded by the Buis’ argument that their plea agreements are
no longer effective, as the provision they claim the Government
breached does not contain an agreed-upon sentence within the
meaning of Fed. R. Crim. P. 11(c)(1)(C). See United States v.
Lewis, 633 F.3d 262, 270-71 (4th Cir. 2011) (noting that the
critical plea agreement provision was “drawn in mandatory and
plain terms” indicating a promise). Accordingly, we grant the
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Government’s motion to dismiss in part and dismiss the Buis’
appeal of their sentences.
Next, the Buis argue that the district court plainly
erred when it failed to follow Rule 11(c)(5) at sentencing.
Because Rule 11(c)(5) was not applicable to the plea agreements,
we conclude the district court did not err. Accordingly, we
affirm the Buis’ convictions. 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.
DISMISSED IN PART;
AFFIRMED IN PART
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