                                                                              FILED
                           NOT FOR PUBLICATION                                 FEB 07 2014

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-50180

              Plaintiff - Appellee,              D.C. No. 2:10-cr-00923-SJO-13

  v.
                                                 MEMORANDUM*
ROBBIONTA MONSON, AKA Fred,
AKA Lil Rob,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 12-50537

              Plaintiff - Appellee,              D.C. No. 2:10-cr-00923-SJO-10

  v.

STEVEN RENELL WILLIAMS, Jr., AKA
Baby Ben, AKA Brazie, AKA Brazy,
AKA Little Stevie, AKA Steven Williams,
AKA Steven Renil Williams,

              Defendant - Appellant.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                    Appeal from the United States District Court
                        for the Central District of California
                     S. James Otero, District Judge, Presiding

                           Submitted February 3, 2014**
                              Pasadena, California

Before: KLEINFELD, SILVERMAN, and HURWITZ, Circuit Judges.

      Robbionta Monson appeals the sentence imposed after his guilty plea to

conspiracy to commit racketeering offenses in violation of 18 U.S.C. § 1962(d) and

conspiracy to commit drug trafficking in violation of 21 U.S.C. §§ 846 and

841(b)(1)(A). Steven Williams appeals his criminal sentence imposed after his

guilty plea to discharging a firearm in furtherance of a crime of violence in

violation of 18 U.S.C. § 924(c)(1)(A)(iii). We have jurisdiction pursuant to 18

U.S.C. § 3742(a) and 28 U.S.C. § 1291 and affirm.

      Monson’s argument that the district court erroneously imposed a two-level

firearm enhancement fails because the district court did no such thing. It did not

calculate a U.S.S.G. § 2D1.1(b) enhancement. It merely considered Monson’s

conduct as a sentencing factor under 18 U.S.C. § 3553(a).

      Monson’s claim that the district court violated Federal Rule of Criminal

Procedure 32(h) by failing to give notice of its intent to depart above the guideline

        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

                                          2
range fails because the district court did not engage in a “departure.” Rather, it

“varied” above the guideline. No notice is required for a variance. See Irizarry v.

United States, 553 U.S. 708, 714 (2008); United States v. Christensen, 732 F.3d

1094, 1102 (9th Cir. 2013).

      Nor did the district court abuse its discretion by sentencing Monson above

the guidelines range to 211-month concurrent sentences in light of Monson’s very

bad prior record, his role in this violent case, and his danger to the community, all

of which the district court fully explained.

      Williams argues that the government breached its agreement to recommend

the statutory minimum sentence by emphasizing aggravating facts at sentencing,

even though it reiterated its agreed-to recommendation. The government breaches

an agreement to make no sentencing recommendation or to recommend a sentence

at the low end of the guidelines range by arguing or presenting fact that serve no

purpose at sentencing other than to urge the court to sentence the defendant above

the agreed-upon sentence. United States v. Whitney, 673 F.3d 965, 971 (9th Cir.

2012); United States v. Mondragon, 228 F.3d 978, 980-81 (9th Cir. 2000); United

States v. Johnson, 187 F.3d 1129, 1135 (9th Cir. 1999). But, the government does

not breach its agreement if it complies with its duty to correct factual inaccuracies

or to provide new relevant factual information to the court. Id.; United States v.


                                          3
Maldonado, 215 F.3d 1046, 1052 (9th Cir. 2000); United States v. Read, 778 F.2d

1437, 1442 (9th Cir. 1985).

      In this case, the government did not argue or introduce facts that served no

purpose other than to urge a higher sentence. There was no agreement regarding

supervised release, and the government argued that the facts it supplied supported

the agreed-upon sentence and its request for the maximum supervised release term,

and special release conditions.

      Moreover, the parties agreed that each side retained the right to supplement

the plea agreement’s stipulated facts. In addition, the government was duty-bound

to provide the full facts to the court. Read, 778 F.2d at 1441-42. Because the facts

argued by the government were relevant to the requested supervised release term

and conditions, which were not part of the stipulated sentence, and the government

provided new relevant information that was not in the presentence report or plea

agreement, the government did not implicitly breach its agreement to recommend

the statutory minimum sentence.

      William’s brief also raises other claims of breach of the plea agreement that

were not objected to in the district court. These claims do not survive plain error

review.




                                          4
      Finally, the district court did not abuse its discretion by sentencing Williams

to 156 months in prison. The maximum sentence was life; the ten-year mandatory

minimum was the guideline sentence. Williams admitted that he was involved in a

gang conspiracy to possess weapons in furtherance of the drug conspiracy,

encouraged others to violently protect gang territory just prior to the September 11

shooting, sold at least one weapon, ordered ammunition, sold drugs, had a problem

managing aggressive behavior and anger, had a violent history, and agreed that it

was reasonably foreseeable that two co-conspirators intended to possess firearms

and to shoot into the victims’ residence on September 11. The court also

considered the mitigating evidence, including a “horrific” childhood, and indicated

that it was imposing a sentence lower than originally contemplated because of the

mitigating facts. Under the totality of the circumstances considered by the court,

the district court did not abuse its discretion by sentencing Williams to 156 months

of incarceration, three years longer than the mandatory minimum but still much

less than the maximum possible sentence of life.

      AFFIRMED.




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