     Case: 13-60489      Document: 00512807329         Page: 1    Date Filed: 10/17/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals

                                    No. 13-60489
                                                                                     Fifth Circuit

                                                                                   FILED
                                  Summary Calendar                          October 17, 2014
                                                                              Lyle W. Cayce
UNITED STATES OF AMERICA,                                                          Clerk


                                                 Plaintiff-Appellee

v.

WILLIE EARL CULLEY,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                              USDC No. 3:12-CR-88


Before REAVLEY, JONES, and PRADO, Circuit Judges.
PER CURIAM: *
       Willie Earl Culley appeals the 57-month sentence imposed following his
guilty-plea conviction of conspiracy to possess with intent to distribute more
than 500 grams of cocaine and cocaine base, in violation of 21 U.S.C. § 846. He
argues that the Government breached the plea agreement by failing to
recommend a sentence in the lower 25 percent of the guidelines range and he
challenges the substantive reasonableness of his sentence.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-60489    Document: 00512807329     Page: 2   Date Filed: 10/17/2014


                                 No. 13-60489

      Whether the Government has breached a plea agreement is a question
of law that this court reviews de novo. United States v. Reeves, 255 F.3d 208,
210 (5th Cir. 2001). As Culley did not object to the alleged breach of the plea
agreement in the district court, the issue is reviewed for plain error. Id.
Because the Government’s recommendation was incorporated into the
presentence report, the Government did not breach the plea agreement by not
explicitly requesting a sentence in the lower 25% of the guidelines range at the
sentencing hearing. See United States v. Davenport, 286 F.3d 217, 221 (5th
Cir. 2002); United States v. Reeves, 255 F.3d 208, 210 (5th Cir. 2001).
Moreover, the district court indicated that it was aware of the Government’s
sentencing recommendation regarding the guidelines range.
      In response to Culley’s challenge to the substantive reasonableness of
his sentence, the Government argues, inter alia, that this court should dismiss
Culley’s appeal based upon the plea agreement’s appeal waiver. The record
indicates that Culley entered into the plea agreement knowingly and
voluntarily and that he understood the clear, explicit terms of the waiver. See
United States v. Bond, 414 F.3d 542, 544 (5th Cir. 2005). Pursuant to the terms
of the waiver, Culley waived the right to appeal his sentence on any ground,
which includes his substantive reasonableness challenge. Because the appeal
waiver was knowing and voluntary and because the Government seeks the
enforcement of the appeal waiver, the appeal is dismissed. See United States
v. Walters, 732 F.3d 489, 491 (5th Cir. 2013), cert. denied, 134 S. Ct. 1349
(2014).
      APPEAL DISMISSED.




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