     Case: 17-60834      Document: 00514695589         Page: 1    Date Filed: 10/24/2018




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

                                    No. 17-60834                           FILED
                                  Summary Calendar                  October 24, 2018
                                                                      Lyle W. Cayce
                                                                           Clerk


UNITED STATES OF AMERICA,

                                                 Plaintiff−Appellee,

versus

CHRISTOPHER E. LEMON,

                                                 Defendant−Appellant.




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                                No. 3:16-CR-78-1




Before SMITH, WIENER, and ELROD, Circuit Judges.
PER CURIAM: *

       Christopher Lemon appeals the 480-month sentence imposed following



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-60834    Document: 00514695589    Page: 2   Date Filed: 10/24/2018


                                No. 17-60834

his guilty-plea conviction of second degree murder in violation of 18 U.S.C.
§ 1111. He contended in his initial brief that the district court procedurally
erred by failing to grant a reduction in his offense level for acceptance of
responsibility.

      In response, the government moved to dismiss the appeal based on the
waiver-of-appeal provision in the plea agreement and plea supplement, where-
in Lemon agreed to waive the right to challenge his conviction or sentence. In
the alternative, the government moved for summary affirmance. Lemon re-
sponded, claiming that the government had breached the plea agreement by
failing to recommend a sentence in the lower 50% of the guideline range.

      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). Because Lemon 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 presen-
tence report, the government did not breach the plea agreement by not expli-
citly requesting a sentence in the lower 50% of the range. See United States v.
Davenport, 286 F.3d 217, 221 (5th Cir. 2002); Reeves, 255 F.3d at 210−11.

      The record demonstrates that Lemon 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).
Under the waiver, Lemon waived the right to appeal his sentence on any
ground, which includes his procedural-reasonableness challenge. Because the
waiver was knowing and voluntary and because the government seeks its
enforcement, the motion to dismiss is GRANTED, and the appeal is
DISMISSED. See United States v. Walters, 732 F.3d 489, 491 (5th Cir. 2013).
The alternative motion for summary affirmance is DENIED.


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