     Case: 12-31054       Document: 00512291088         Page: 1     Date Filed: 06/28/2013




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

                                                                            FILED
                                                                           June 28, 2013
                                     No. 12-31054
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

MOROCCO SHAMARLOS PORTER,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 5:12-CR-96-1


Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Morocco Shamarlos Porter pleaded guilty to being a felon in possession of
a firearm and to possessing a firearm in relation to a drug trafficking offense.
See 18 U.S.C. §§ 924(c)(1), 922(g)(1). He first argues that the Government
breached the plea agreement by introducing evidence at sentencing to support
the application of an obstruction of justice enhancement and advocating in favor
of its application. The Government’s conduct was not inconsistent with a
reasonable reading of its promise not to prosecute Porter for additional offenses.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-31054    Document: 00512291088        Page: 2   Date Filed: 06/28/2013

                                    No. 12-31054

See United States v. Valencia, 985 F.2d 758, 761 (5th Cir. 1993). Such an
agreement does not include a promise to withhold aggravating information from
the court during sentencing proceedings for the offense of which the defendant
pleaded guilty. United States v. Hoster, 988 F.2d 1374, 1378 (5th Cir. 1993);
United States v. Rodriguez, 925 F.2d 107, 112 (5th Cir. 1991).
      For the first time on appeal, Porter argues that the obstruction of justice
enhancement should not have been applied in his case because it was imposed
in violation of United States v. Booker, 543 U.S. 220 (2005). Porter’s sentence
does not violate Booker because it was imposed under the post-Booker advisory
Guidelines system. See United States v. Mares, 402 F.3d 511, 518-19 (5th Cir.
2005). He has not shown any error, plain or otherwise. See Puckett v. United
States, 556 U.S. 129, 135 (2009).
      Next, Porter argues that the district court miscalculated his criminal
history by assigning him two points each for four misdemeanor convictions.
However, he has not shown that the district court erred in applying U.S.S.G.
§ 4A1.1(b)(1) based on the maximum term of imprisonment imposed for those
offenses rather than on the amount of time Porter actually served. See United
States v. Cervantes, 706 F.3d 603, 620 (5th Cir. 2013).
      Finally, Porter argues for the first time on appeal that his sentence is
substantively unreasonable in light of the district court’s procedural errors.
Because Porter has not shown any procedural error, this argument fails.
Furthermore, we will not consider Porter’s argument, raised for the first time in
his reply brief, that his sentence is substantively unreasonable. See United
States v. Prince, 868 F.2d 1379, 1386 (5th Cir. 1989).
      AFFIRMED.




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