     Case: 18-60866      Document: 00515467731         Page: 1    Date Filed: 06/26/2020




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


                                    No. 18-60866                                FILED
                                  Summary Calendar                          June 26, 2020
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JAVON JAMIL BYRD,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 1:18-CR-49-1


Before SMITH, DENNIS, and DUNCAN, Circuit Judges.
PER CURIAM: *
       Javon Jamil Byrd appeals his 120-month sentence for possession of a
firearm by an unlawful user of a controlled substance. He contends that the
Government breached his plea agreement by advocating for enhancements
that drove the guideline imprisonment range above the statutory maximum,
which rendered the Government’s recommendation for a sentence in the lower
half of the guideline range meaningless. He also argues that the district court’s


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-60866       Document: 00515467731   Page: 2   Date Filed: 06/26/2020


                                  No. 18-60866

sentence was unreasonable because the evidence did not support its
application of the enhancements.
      Because Byrd did not argue that the Government breached the plea
agreement in the district court, we review this claim for plain error only.
United States v. Cluff, 857 F.3d 292, 297 (5th Cir. 2017). To establish plain
error, Byrd must demonstrate (1) an error, (2) that is clear or obvious, and (3)
that affects his substantial rights. See Puckett v. United States, 556 U.S. 129,
135 (2009). To prove that a breach of his plea agreement affects his substantial
rights, Byrd “must show a reasonable probability that, but for the error, he
would have received a lesser sentence.” United States v. Tapia, 946 F.3d 729,
734 (5th Cir. 2020) (citations omitted). If he satisfies these conditions, we have
the discretion to correct the error and should do so if it “seriously affects the
fairness, integrity or public reputation of judicial proceedings.”       Rosales-
Mireles v. United States, 138 S. Ct. 1897, 1905 (2018) (internal quotation marks
and citation omitted).
      We apply general principles of contract law in interpreting a plea
agreement and consider whether the Government’s conduct is consistent with
the defendant’s reasonable understanding of the agreement. United States v.
Pizzolato, 655 F.3d 403, 409 (5th Cir. 2011). The defendant has the burden of
proving by a preponderance of the evidence the underlying facts that establish
a breach. Id.
      Byrd fails to establish that the Government’s argument in support of the
enhancements was clearly inconsistent with a reasonable understanding of the
plea agreement.      See Cluff, 857 F.3d at 300.    Nor can he demonstrate a
reasonable probability that, but for the Government’s arguments, he would
have received a lesser sentence. See Tapia, 946 F.3d at 734. Byrd’s appeal
waiver, which the Government invokes, bars his challenge to the



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                                 No. 18-60866

reasonableness of his sentence and the application of the enhancements. See
United States v. Kelly, 915 F.3d 344, 350 (5th Cir. 2019); United States v.
Oliver, 630 F.3d 397, 414-15 (5th Cir. 2011).      Accordingly, we grant the
Government’s request to dismiss the appeal. See United States v. Story, 439
F.3d 226, 230 n.5 (5th Cir. 2006).
      APPEAL DISMISSED.




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