United States of America v. Collins Kusi Sakyi

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4706
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
COLLINS KUSI SAKYI,
Defendant - Appellant.
No. 11-4635
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
COLLINS KUSI SAKYI,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema,
District Judge. (1:06-cr-00405-LMB-1)
Submitted: March 30, 2012 Decided: August 14, 2012
Before MOTZ and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

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Dismissed in part, affirmed in part, and remanded by unpublished
per curiam opinion.
John L. Machado, LAW OFFICE OF JOHN MACHADO, Washington, DC, for
Appellant. Neil H. MacBride, United States Attorney, Thomas J.
Krepp, Special Assistant United States Attorney, Alexandria,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Pursuant to a plea agreement, Collins Kusi Sakyi
pleaded guilty to drug offenses, aiding and abetting failure to
appear, obstruction of justice, and conspiracy to cause flight
to avoid prosecution. The district court sentenced him to a
total term of imprisonment of 320 months. In these consolidated
appeals, Sakyi argues that the district court erred when it
denied his suppression motion, improperly enhanced his sentence
based on his role as a supervisor or manager, and failed to
adjust his criminal history category upon vacating and
reentering his conviction. He also asserts that the Government
breached the plea agreement. The Government seeks to enforce
the appellate waiver provision of the plea agreement. We
dismiss in part, affirm in part, and remand.
Sakyi argues that the Government violated the
provision of the plea agreement prohibiting the use of
information he provided to enhance his sentence when the
Government referenced at the sentencing hearing a self-
incriminating statement Sakyi made during plea negotiations.
“It is settled that 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); see United States v. Cohen, 459
F.3d 490, 495 (4th Cir. 2006) (“[W]e will not enforce an

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otherwise valid appeal waiver against a defendant if the
government breached the plea agreement containing that
waiver.”). Because Sakyi did not raise this claim in the
district court, we review it for plain error. See Puckett v.
United States, 556 U.S. 129, 134-35 (2009) (discussing
standard). To prevail under this standard, Sakyi must show not
only that the Government plainly breached the plea agreement,
but also that he was prejudiced by the error and that “the
breach was so obvious and substantial that failure to notice and
correct it [would affect] the fairness, integrity or public
reputation of the judicial proceedings.” United States v.
McQueen, 108 F.3d 64, 66 (4th Cir. 1997) (internal quotation
marks omitted).
With these standards in mind, our review of the record
leads us to conclude that Sakyi has failed to establish the
Government breached the plea agreement. It is clear that the
Government obtained the challenged information through an
independent source, as Sakyi repeated his boasts about the
percentage of heroin he trafficked from Africa to co-
conspirators who, in turn, recounted them to investigators.
Sakyi is entitled to no relief on this claim.
Pursuant to a plea agreement, a defendant may waive
his appellate rights. United States v. Manigan, 592 F.3d 621,
627 (4th Cir. 2010). A waiver will preclude an appeal of “a

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specific issue if . . . the waiver is valid and . . . the issue
being appealed is within the scope of the waiver.” United
States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005). The
question of whether a defendant validly waived his right to
appeal is a question of law that this court reviews de novo.
Manigan, 592 F.3d at 626.
“An appellate waiver is valid if the defendant
knowingly and intelligently agreed [to waive the right to
appeal].” Id. at 627. To determine whether a waiver is knowing
and intelligent, we examine “the totality of the circumstances.”
Id. (internal quotation marks omitted). “An important factor in
such an evaluation is whether the district court sufficiently
explained the waiver to the defendant during the Federal Rule of
Criminal Procedure 11 plea colloquy.” Id.; see United States v.
Johnson, 410 F.3d 137, 151 (4th Cir. 2005).
We note that the district court fully complied with
Fed. R. Crim. P. 11. Sakyi does not challenge the validity of
the waiver, and the record reveals that the district court
reviewed the waiver in some detail. The district court
explained that, by pleading guilty, Sakyi was waiving his right
to appeal the district court’s denial of his suppression motion
and, additionally, the appellate wavier provision would prevent
him from appealing his convictions or sentence. Moreover, in
its brief, the Government sought to enforce the waiver.

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Accordingly, we decline to review the denial of Sakyi’s motion
to suppress or the application of the leadership and recency
sentencing enhancements.
Accordingly, we dismiss the appeal of the denial of
Sakyi’s suppression motion and the application of the challenged
sentencing enhancements based upon Sakyi’s valid waiver of
appellate rights. We affirm the judgment of the district court
with respect to Sakyi’s contention that the Government breached
the terms of the plea agreement. We remand to the district
court with instructions for the court to correct the judgment,
pursuant to Fed. R. Crim. P. 36, to reflect that the statute of
conviction for aiding and abetting the failure to appear (Count
13) is 18 U.S.C. § 3146(a)(1). Finally, as Sakyi is represented
by counsel, we deny Sakyi’s motion to file a pro se supplemental
brief. 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.
DISMISSED IN PART,
AFFIRMED IN PART,
AND REMANDED

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