UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 06-4458

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

MICHAEL ANTHONY KENNEDY,

Defendant - Appellant.

Appeal from the United States District Court for the District of

South Carolina, at Greenville. Henry M. Herlong, Jr., District

Judge. (6:05-cr-00815-HMH-1)

Submitted: October 23, 2006 Decided: November 13, 2006

Before WILKINSON and WILLIAMS, Circuit Judges, and HAMILTON, Senior

Circuit Judge.

Affirmed by unpublished per curiam opinion.

J. Falkner Wilkes, CRAVEN & WILKES, Greenville, South Carolina, for

Appellant. Reginald I. Lloyd, United States Attorney, Regan A.

Pendleton, Assistant United States Attorney, Greenville, South

Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

Michael Anthony Kennedy pled guilty pursuant to a plea

agreement to one count of conspiracy to manufacture and possess

with intent to distribute five kilograms or more of cocaine and

fifty or more grams of cocaine base (“Count I”), and one count of

conspiracy to possess with intent to distribute a quantity of

marijuana (“Count II”), in violation of 21 U.S.C. § 846 (2000).

Kennedy appeals his conviction and sentence, arguing that the

district court’s failure to discuss his plea agreement at the Rule

11 hearing requires this court to reverse and set aside his

sentence. We affirm.

Kennedy's plea agreement provided that should Kennedy

cooperate pursuant to the terms of the plea agreement and if his

cooperation was deemed by the Government as providing “substantial

assistance in the investigation or prosecution of another person

who has committed an offense,” the Government agreed to move for a

reduction of sentence. 

Prior to sentencing, the Government expected Kennedy to

testify against his younger sister, who was one of the other

individuals in the eighteen-defendant conspiracy in which he was

charged and convicted. When Kennedy refused to testify truthfully

against his younger sister, the Government informed him that it

would not move for a downward departure on his behalf. 
*The probation officer calculated a sentencing guideline range

for Kennedy of 324 to 405 months’ imprisonment founded on a total

offense level of 41 and a criminal history category of I.

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The district court ultimately sentenced Kennedy to 324

months in prison as to Count I, and sixty months in prison as to

Count II, both terms to run concurrently; five years of supervised

release as to Count I and two years of supervised release as to

Count II, both terms to run concurrently for a total of five years

of supervised release; and ordered payment of a $200 statutory

assessment fee.*

 

Kennedy’s counsel appealed his conviction and sentence on

the ground that the district court failed to comply with Fed. R.

Crim. P. 11 in accepting Kennedy’s plea. While it is not disputed

by Kennedy that the district court generally complied with the

requirements of Rule 11, Kennedy claims that the parties’ failure

to disclose his plea agreement during the Rule 11 hearing is ground

for having his conviction and sentence reversed. 

Kennedy did not move in the district court to withdraw

his guilty plea, and his challenge to the adequacy of the Rule 11

hearing is, therefore, reviewed for plain error. See United States

v. Martinez, 277 F.3d 517, 526 (4th Cir. 2002). We have carefully

reviewed the transcript of the Rule 11 hearing and find that the

district court generally complied with Rule 11 in its acceptance of

Kennedy’s guilty plea. 
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We do find, and the Government concedes, that the parties

failed to disclose Kennedy's plea agreement during the Rule 11

hearing, that this omission was error, and that the error was

plain. United States v. Olano, 507 U.S. 725, 731-32 (1993). We

conclude, however, that the error did not affect Kennedy's

substantial rights. First, Kennedy does not allege that but for

the Rule 11 error, he would not have pled guilty. Rather,

Kennedy’s counsel merely states that Kennedy "apparently relied on

the agreement and potential for a downward departure as inducement

for the plea." This assertion does not meet the standard set forth

in Martinez. See 277 F.3d at 532-33 (holding that, to prove that

an error affected his substantial rights, the defendant must show

that he would not have pled guilty but for that error).

Moreover, the plea agreement specifically provided that

Kennedy was required to cooperate with the Government in its

prosecution of other persons and that the Government would only

agree to move for a downward departure if, in its sole discretion,

it determined Kennedy's assistance was “substantial.” Even if the

Government did agree to move for a downward departure, however, the

matter of Kennedy's sentencing remained within the sole discretion

of the district court. Accordingly, even assuming the Government

had moved for a downward departure on Kennedy's behalf, whether the

district court would have granted the motion is speculative, at

best.
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Because Kennedy has not made the required showing under

Olano, 507 U.S. at 734, we affirm Kennedy’s conviction 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