United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 21, 2007
Charles R. Fulbruge III
Clerk
No. 05-61163
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
YUNNEL WILLIS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Mississippi
(4:05-CR-7-ALL)
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Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Yunnel Willis appeals his guilty-plea
conviction and sentence for assault with a dangerous weapon in
Indian Country,in violation of 18 U.S.C. §§ 113(a)(3) and 1153. He
contends that the district court failed to articulate specific oral
and written reasons for its decision to impose a non-Guideline
sentence. He also contends that the non-Guideline sentence was
unreasonable because it gave significant weight to irrelevant or
improper factors already taken into account by the Guidelines. As
Willis did not object to the non-Guideline sentence in the district
*
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this opinion should not be published and is not precedent except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.
court, we review it for plain error. See United States v. Jones,
444 F.3d 430, 436 (5th Cir.), cert. denied, 126 S. Ct. 2958 (2006).
The record reflects that the district court calculated the
applicable guideline range, used that range as a frame of
reference, and decided to deviate upwardly from that range based on
its consideration of individualized and proper 18 U.S.C. § 3553(a)
factors, including (1) the nature and circumstances of the instant
offense and Willis’s history and characteristics; (2) the need to
provide just punishment and deter criminal conduct; and (3) the
need to protect the public from further crimes by Willis. See
United States v. Smith, 440 F.3d 704, 707-09 (5th Cir. 2006).
Specifically, the district court noted that it had presided over
Willis’s prior juvenile conviction for manslaughter and that Willis
was not entitled to the same consideration he received in that case
when, after having killed someone with a knife, he wantonly engaged
in another violent act. The district court’s stated reasons for
the upward variance were not based on improper or irrelevant
factors and did not represent a clear error of judgment in
balancing the sentencing factors. The district court’s stated
reasons also allow us to determine that the non-Guideline sentence
is supported by § 3553(a) factors and is reasonable. See id.
Willis has failed to show error, plain or otherwise.
Willis also asserts that the district court committed
reversible error when it failed to give him prior notice of its
intent to impose a non-Guideline sentence and of the factual basis
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for the non-Guideline sentence. As he did not object to the lack
of notice in the district court, we review this issue for plain
error. See Jones, 444 F.3d at 443.
Even if the district court’s failure to provide notice under
FED. R. CRIM. P. 32(h) constituted error that was plain, Willis
offers no argument or evidence suggesting that, with adequate
notice, he could have persuaded the district court to impose a
lower sentence. See id. Accordingly, Willis has failed to show
reversible plain error.
Finally, Willis insists that the government breached his plea
agreement by arguing on appeal that the non-Guideline sentence was
reasonable. The government complied with its contractual
obligation to recommend that the district court impose a sentence
within the lower 10% of the applicable guideline range, inform the
probation office and district court of the agreement and the nature
and extent of Willis’s relevant activities, and make a
recommendation as to acceptance of responsibility. Further, the
only provision in the plea agreement discussing appeal was the
appellate-waiver provision. No reasonable reading of the plea
agreement would prohibit the government from arguing on appeal that
the non-Guideline sentence was reasonable. See United States v.
Cantu, 185 F.3d 298, 304 (5th Cir. 1999). Willis has failed to
show that the government breached the plea agreement. See United
States v. Laday, 56 F.3d 24, 26 (5th Cir. 1995).
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The district court’s judgment, specifically the non-guideline
sentence imposed, is
AFFIRMED.
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