United States v. Kirk

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4010
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
NATHANIEL PRINCE KIRK,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Robert J. Conrad, Jr.,
Chief District Judge. (5:04-cr-00055)
Submitted: September 26, 2007 Decided: November 8, 2007
Before MICHAEL, MOTZ, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Trevor M. Fuller, FULLER & BARNES, LLP, Charlotte, North Carolina,
for Appellant. Gretchen C. F. Shappert, United States Attorney,
Charlotte, North Carolina, Amy E. Ray, Assistant United States
Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Nathaniel Prince Kirk pled guilty pursuant to a plea
agreement to armed bank robbery, in violation of 18 U.S.C.
§ 2113(d) (2000), and using, carrying, brandishing and discharging
a firearm during and in relation to a crime of violence, in
violation of 18 U.S.C.A. § 924(c) (West 2000 & Supp. 2007). In the
plea agreement, the parties agreed not to seek any Sentencing
Guidelines enhancements under Chapter Two with the exception of
several not relevant to this appeal. The plea agreement also noted
there was a statutory consecutive sentence of not less than five
years’ imprisonment for the firearm charge. At sentencing, the
district court imposed two Chapter Two enhancements that raised
Kirk’s offense level. The court also imposed a seven-year minimum
sentence for the firearm conviction based on the finding that Kirk
brandished the weapon. Kirk claims the plea agreement was violated
as a result of these actions by the district court. Finding no
error, we affirm.
Because plea agreements are interpreted as contracts, the
Government is held only to promises that it actually made to the
defendant. See United States v. Peglera, 33 F.3d 412, 413 (4th
Cir. 1994); United States v. Fentress, 792 F.2d 461, 464 (4th Cir.
1986). Neither the sentencing court nor the Probation Office is
bound by the terms of the plea agreement. Rather, the court may
impose any sentence it finds appropriate within the guidelines
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range and may consider the results of the presentence investigation
report (“PSR”) together with any relevant information in
determining the sentence. See United States v. Gordon, 61 F.3d
263, 268 (4th Cir. 1995). Because the plea agreement stated that
the sentence was determined at the district court’s discretion and
that the court could consider any relevant information, the court
could consider the enhancements noted but not applied in the PSR.
Id. at 266-68. By accepting the plea agreement, Kirk left open the
possibility that the court could consider Chapter Two enhancements
and an increased statutory seven-year sentence for the firearm
conviction even if the Government did not advocate for enhancements
or the increased statutory minimum sentence. Kirk also declined
the opportunity to withdraw his guilty plea after learning that if
found guilty at trial, he faced an even longer sentence.
Accordingly, we affirm the convictions 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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