United States of America v. Donnie Flynn King, Sr.

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4081
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DONNIE FLYNN KING, SR.,
Defendant - Appellant.
No. 14-4082
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
LOU WELLS KING,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan,
District Judge. (5:12-cr-00373-FL-1; 5:12-cr-00373-FL-2)
Submitted: November 10, 2014 Decided: November 13, 2014
Before GREGORY, AGEE, and THACKER, Circuit Judges.

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Affirmed in part; dismissed in part by unpublished per curiam
opinion.
R. Clarke Speaks, SPEAKS LAW FIRM, PC, Wilmington, North
Carolina, for Appellants. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Shailika K. Shah, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM
Donnie King, Sr., (“Mr. King”) and Lou Wells King
(“Mrs. King) were sentenced to thirty-three months and fourteen
months’ imprisonment, respectively, for making materially false
and fraudulent misrepresentations in relation to their Chapter
11 bankruptcy proceeding, in violation of 18 U.S.C. § 157(3)
(2012). On appeal, the Kings contend that (1) the Government
breached its plea agreements with the Kings by moving to be
relieved of its obligations under the plea agreements; (2) the
district court erred in permitting the Government to be relieved
of its obligations under the plea agreements; (3) the Government
committed prosecutorial misconduct by moving for relief from its
obligations under the plea agreements; and (4) Mr. King’s
sentence was unreasonable. We affirm in part and dismiss in
part.
First, because the Kings did not claim in the district
court that the Government breached their plea agreements, our
review is for plain error. United States v. Dawson, 587 F.3d
640, 645 (4th Cir. 2009). Under that standard, the Kings must
show “(1) an error, (2) that is plain, (3) that affects the
defendant’s substantial rights, and (4) that seriously affects
the fairness, integrity, or public reputation of judicial
proceedings.” Id. (citing Puckett v. United States, 556 U.S.
129, 133-34 (2009)).

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We have reviewed the record and conclude that the
Government did not breach its plea agreements with the Kings by
moving to be relieved of its obligations under the agreements.
In short, the Government was permitted to so move because the
Kings committed a material breach of the plea agreements, as
discussed below. We thus conclude that the Kings’ claim of
breach fails.
Second, we review the district court’s ruling that the
Kings breached their plea agreements under a bifurcated
standard: the district court’s factual findings are reviewed for
clear error, while the court’s application of principles of
contract interpretation are reviewed de novo. United States v.
Bowe, 257 F.3d 336, 342 (4th Cir. 2001). The parties only
dispute whether the Kings’ conduct constituted a material
breach, a question of contract interpretation. Id. at 342-43.
We have reviewed the record and conclude that the
Kings did breach their plea agreements. The Kings were required
by the plea agreements to abide by any conditions of release
before their sentencing. One such condition was that the Kings
abide by federal law. The Kings subsequently filed a false tax
return in violation of federal law. See 26 U.S.C. § 7206
(2012). We thus conclude that the district court did not err in
holding that the Kings breached their plea agreements.

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Third, because the Kings raise their claim of
prosecutorial misconduct for the first time on appeal, we review
it for plain error. United States v. Alerre, 430 F.3d 681, 689
(4th Cir. 2005). To succeed on this claim, the Kings must
demonstrate “(1) that the prosecutors engaged in improper
conduct, and (2) that such conduct prejudiced the [Kings’]
substantial rights so as to deny [them] a fair trial.” Id.
We have reviewed the record and conclude that the
Government engaged in no improper conduct. Again, the
Government was entitled to relief from the plea agreements
because the Kings materially breached the terms of such
agreements. Therefore, the district court did not plainly err
in rejecting the claim of prosecutorial misconduct.
Finally, in response to Mr. King’s claim that his
sentence was unreasonable, the Government invokes Mr. King’s
broad waiver of his right to appeal. We assess de novo whether
a defendant has effectively waived the right to appeal. United
States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005). We will
enforce an appeal waiver “if the waiver is valid and the issue
sought to be appealed falls within the scope of the waiver.”
United States v. Cohen, 459 F.3d 490, 494 (4th Cir. 2006). An
appellate waiver is generally considered to be knowing and
intelligent, and therefore valid, where the court specifically
questioned the defendant regarding the waiver during the Rule 11

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colloquy and the record indicates that the defendant understood
the significance of the waiver. United States v. Johnson, 410
F.3d 137, 151 (4th Cir. 2005).
We have reviewed the record and conclude that Mr. King
waived his right to appeal the reasonableness of his sentence.
Mr. King knowingly and intelligently agreed to the waiver
provision, and this issue is within the scope of that waiver.
Accordingly, to the extent Mr. King attempts to challenge his
sentence, this appeal is dismissed. The Kings’ motion to
expedite decision is denied as moot.
Accordingly, we affirm the criminal judgment of Mrs.
King, and we affirm in part and dismiss in part as to Mr. King.
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 IN PART;
DISMISSED IN PART

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