UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
- 2 -

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
- 3 -

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
- 4 -

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
- 5 -

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
- 6 -

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
- 7 -

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.”). 
- 8 -

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