United States v. Malamin Sonko ( 2018 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-4098
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MALAMIN OUSMAN SONKO,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Raleigh. Terrence W. Boyle, Chief District Judge. (5:15-cr-00334-BO-2)
Submitted: October 30, 2018 Decided: November 21, 2018
Before MOTZ, FLOYD, and HARRIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Richard C. Speaks, SPEAKS LAW FIRM, Wilmington, North Carolina, for Appellant.
Robert J. Higdon, Jr., United States Attorney, Jennifer P. May-Parker, Assistant United
States Attorney, Kristine L. Fritz, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pursuant to a written plea agreement, Malamin Ousman Sonko pled guilty to
conspiracy to commit money laundering (Count 2), in violation of 18 U.S.C. § 1956(h)
(2012), and aggravated identity theft and aiding and abetting (Count 31), in violation of
18 U.S.C. §§ 2, 1028A(a)(1) (2012). The court imposed an 80-month sentence. Sonko
appeals, arguing that the Government breached the plea agreement by arguing for certain
specific offense enhancements at sentencing. We affirm.
As originally drafted, the plea agreement contained stipulations that certain
enhancements applied, including U.S. Sentencing Guidelines Manual § 2B1.1(b)(10)
(2016), because the scheme involved sophisticated means, and USSG § 2B1.1(b)(11),
because the offense involved the possession or use of device-making equipment. The
plea agreement submitted to the district court, however, contained handwritten
modifications striking out the parties’ stipulations that specific offense enhancements
were warranted under USSG § 2B1.1(b)(10) and (11). Sonko, defense counsel, and the
Assistant United States Attorney (“AUSA”) initialed the modification, and no
modifications were made to either the base offense level or the adjusted total offense
level.
At the sentencing hearing, Sonko questioned the offense level of 23, stating his
understanding that the plea agreement established an offense level of 19. The probation
officer, the AUSA, and defense counsel agreed, and relayed to the court, that striking out
the stipulations related to enhancements under USSG § 2B1.1(b)(10) and (11) meant that
Sonko was no longer stipulating that the enhancements applied, but that the parties could
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argue the appropriateness of the enhancements at sentencing. Based on these
representations and after further argument on whether the enhancements should apply,
the district court found that a preponderance of evidence supported the enhancements.
“[A] defendant alleging the Government’s breach of a plea agreement bears the
burden of establishing that breach by a preponderance of the evidence.” United States v.
Snow, 234 F.3d 187, 189 (4th Cir. 2000). We review “the district court’s factual findings
for clear error and its application of principles of contract interpretation de novo.” United
States v. Dawson, 587 F.3d 640, 645 (4th Cir. 2009) (internal quotation marks omitted). *
In interpreting plea agreements, we use traditional principles of contract law and
“enforce a plea agreement’s plain language in its ordinary sense.” United States v.
Warner, 820 F.3d 678, 683 (4th Cir. 2016) (internal quotation marks omitted). This court
carefully scrutinizes plea agreements “[b]ecause a defendant’s fundamental and
constitutional rights are implicated when he is induced to plead guilty by reason of a plea
agreement.” United States v. Jordan, 509 F.3d 191, 195-96 (4th Cir. 2007) (internal
quotation marks omitted). “[W]hen a plea rests in any significant degree on a promise or
agreement of the prosecutor, so that it can be said to be part of the inducement or
consideration, such promise must be fulfilled.” Santobello v. New York, 404 U.S. 257,
262 (1971). It is well settled that “each party should receive the benefit of its bargain.”
*
On appeal, Sonko maintains that the Government breached the plea agreement
by arguing in support of sentencing enhancements under USSG § 2B1.1(b)(10) and (11).
The Government contends the Sonko did not preserve this issue for appellate review and
therefore our review should be for plain error, but we need not determine the applicable
standard of review because Sonko’s claim fails under either standard.
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United States v. Ringling, 988 F.2d 504, 506 (4th Cir. 1993). However, “[w]hile the
government must be held to the promises it made, it will not be bound to those it did not
make.” United States v. Fentress, 792 F.2d 461, 464 (4th Cir. 1986).
A plain reading of the plea agreement without the stricken paragraphs is that the
parties did not reach any agreement as to enhancements under USSG § 2B1.1(b)(10) and
(11). Sonko asserts that by striking out the previously stipulated enhancements, the
parties were memorializing an agreement to stipulate that the enhancements did not
apply. However, this interpretation is unsupported by the plain meaning of the plea
agreement’s language, and was immediately disputed by the probation officer,
Government counsel, and Sonko’s own attorney at the sentencing hearing.
Accordingly, we conclude that the Government’s arguments at sentencing in
support of the imposition of enhancements under USSG § 2B1.1(b)(10) and (11) did not
constitute a breach of the plea agreement. We therefore affirm the district court’s
judgment. We dispense with oral argument because the facts and legal contentions are
adequately presented in the materials before this court and argument would not aid the
decisional process.
AFFIRMED
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