The opinion
Case: 10-60837 Document: 00511534098 Page: 1 Date Filed: 07/08/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 8, 2011
No. 10-60837
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
v.
JASON ANTOINE BROWN,
Defendant–Appellant.
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:10-CR-3
Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
Jason Antoine Brown appeals the sentence imposed following his
convictions for one count of bank fraud and two counts of aggravated identity
theft. He contends that the Government breached the plea agreement by
arguing at sentencing that the sentences should be consecutive. He maintains
that the plea agreement required the Government to recommend a two-year
total sentence for the two counts of aggravated identity theft or, at a minimum,
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and
is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
Case: 10-60837 Document: 00511534098 Page: 2 Date Filed: 07/08/2011
No. 10-60837
to remain silent concerning whether the sentences should be concurrent or consecutive.
The Government moves to dismiss the appeal as barred by the appeal
waiver in the plea agreement, arguing that it did not breach the plea agreement
because the agreement did not preclude the Government from requesting
consecutive sentences. The Government alternatively moves for summary
affirmance and for an extension of time to file a brief.
Although Brown raised this argument in a pro se district court motion, he
filed it after he had filed a notice of appeal, which divested the district court of
jurisdiction. See United States v. Green, 882 F.2d 999, 1001 (5th Cir. 1989).
Therefore, review is limited to plain error. See Puckett v. United States, 129 S.
Ct. 1423, 1433 (2009). To show plain error, the appellant must show a forfeited
error that is clear or obvious and that affects his substantial rights. Id. at 1429.
If the appellant makes such a showing, this court has the discretion to correct
the error, but only if it seriously affects the fairness, integrity or public
reputation of judicial proceedings. Id.
Brown cannot satisfy the plain error standard. First, it is not clear or
obvious that the Government breached the plea agreement because the
agreement is silent regarding whether the sentences should be served
concurrently or consecutively. See Puckett, 129 S. Ct. at 1429. Further, Brown
has not shown that any alleged breach violated his substantial rights. See id.
The district court had discretion to determine whether to order that the sentence
for the second aggravated identity theft be served concurrently or consecutively.
See 18 U.S.C. § 1028A(b)(4). After hearing arguments from both parties, the
district court ultimately determined that all of the sentences should be served
consecutively and gave numerous reasons for the sentence imposed, including
Brown’s extensive criminal history. Brown has not shown that, but for the
Government’s alleged breach, the district court would not have imposed
consecutive sentences. See Puckett, 129 S. Ct. at 1432-33 & n.4; see also United
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Case: 10-60837 Document: 00511534098 Page: 3 Date Filed: 07/08/2011
No. 10-60837
States v. Mondragon-Santiago, 564 F.3d 357, 364-65 (5th Cir. 2009). Therefore,
Brown has not shown that his substantial rights were violated. See Puckett, 129
S. Ct. at 1429. The Government’s motions to dismiss the appeal or in the
alternative for summary affirmance and for an extension of time to file a brief
are denied.
AFFIRMED; MOTIONS DENIED.
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