     Case: 17-60780      Document: 00514727158         Page: 1    Date Filed: 11/16/2018




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

                                                                                 FILED
                                    No. 17-60780                         November 16, 2018
                                  Summary Calendar
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

SAMUEL GREGG ALLEN,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 3:17-CR-23-1


Before KING, SOUTHWICK, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       Samuel Gregg Allen appeals his 94-month sentence imposed following
his guilty plea to assault with a dangerous weapon with the intent to do bodily
harm while located on a Choctaw Indian Reservation. He argues that the
district court erred in departing upward based on his criminal history in the
Choctaw Tribal Court.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-60780     Document: 00514727158             Page: 2   Date Filed: 11/16/2018


                                   No. 17-60780

      The Government argues that it complied with its obligations under the
plea agreement supplement and, therefore, that the appeal waiver in the plea
agreement is enforceable. Allen argues that the Government breached the plea
agreement by failing to recommend to the district court that it impose a
sentence within the lower 50% of the applicable sentencing guidelines range
computed by the district court.
      Generally, whether the Government has breached a plea agreement is a
question of law that the court reviews de novo. United States v. Reeves, 255
F.3d 208, 210 (5th Cir. 2001).       Allen failed to object at sentencing, and
therefore, our review is for plain error. Id. To establish plain error, Allen must
show a forfeited error that is clear or obvious and that affects his substantial
rights. See Puckett v. United States, 556 U.S. 129, 135 (2009). If he makes
such a showing, the court has the discretion to correct the error, but we shall
do so only if such error seriously affects the fairness, integrity, or public
reputation of judicial proceedings. See id.
      The Government’s sentencing recommendation was incorporated into
the presentence report,      and    the       district     court   was aware of       the
recommendation.      Therefore, the Government did not breach the plea
agreement by not explicitly requesting a sentence in the lower 50% of the
guidelines range at the sentencing hearing. See Reeves, 255 F.3d at 210;
United States v. Davenport, 286 F.3d 217, 221 (5th Cir. 2002). The appeal
waiver bars review of Allen’s sentencing issue, and we therefore dismiss the
appeal. See United States v. Purser, 747 F.3d 284, 294-95 (5th Cir. 2014).
      APPEAL DISMISSED.




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