                                                                            FILED
                              NOT FOR PUBLICATION
                                                                            NOV 06 2015
                       UNITED STATES COURT OF APPEALS                 MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                         Nos. 14-30080, 14-30081
                                                  D.C. No. 3:12-cr-00538-BR-2
                Plaintiff - Appellee,


     v.                                           MEMORANDUM*
ANGELEDITH SARAMAYLENE SMITH
and TANA CHRIS LAWRENCE,

                Defendants - Appellants.



                      Appeals from the United States District Court
                                for the District of Oregon
                       Anna J. Brown, District Judge, Presiding

                         Argued and Submitted October 13, 2015
                                   Portland, Oregon


Before: TASHIMA, GILMAN,** and BEA, Circuit Judges.



          Angeledith Smith and Tana Lawrence (Defendants) tortured and killed Faron

Kalama on the Warm Springs Indian Reservation in the fall of 2012. They eventually



*
 This disposition is not appropriate for publication and is not precedent except as
provided by 9th Cir. R. 36-3.

 The Honorable Ronald Lee Gilman, Senior Circuit Judge for the U.S. Court of
**

Appeals for the Sixth Circuit, sitting by designation.
pleaded guilty to first-degree murder. As part of the plea agreements, the government

promised to recommend a sentence of no more than 35 years in prison and Defendants

agreed to recommend a sentence of no less than 25 years in prison. Defendants

accepted the plea agreements and waived their right to appeal any aspect of their

sentences despite their acknowledgment that the district court would not be bound by

these recommendations. The district court ended up imposing life sentences on both

Defendants. It explained that Defendants’ conduct was among the worst it had

encountered and that the government’s recommended sentence did not adequately

account for the brutality of their crime.

      Both Defendants now appeal. They first contend that their appellate waivers are

unenforceable because the government breached the plea agreements. Next, they raise

several challenges to the substantive and procedural aspects of the district court’s

sentencing decision.

        A knowing and voluntary appellate waiver is enforceable except in limited

circumstances, such as when the government breaches the plea agreement that

contains the waiver. United States v. Jeronimo, 398 F.3d 1149, 1153 & n.2 (9th Cir.

2005), overruled on other grounds by United States v. Castillo, 496 F.3d 947, 957 (9th

Cir. 2007) (en banc). A breach can occur when the government pays lip service to its

obligations under a plea agreement but nevertheless persuades a district court to



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impose a harsher sentence than the one contemplated by the agreement. United States

v. Whitney, 673 F.3d 965, 972 (9th Cir. 2012).

       In the present case, the government agreed to recommend a sentence of no more

than 35 years. At the sentencing hearing, however, the government stated that

Defendants’ crime was worse than other murders that had resulted in 35- or 40-year

sentences. The government also noted that Defendants’ crime could have carried the

death penalty under state law. Finally, the government stated that Defendants’ crime

was one of the worst murders that had occurred in the court’s judicial district in at

least the last 14 years.

       The government maintains that these statements were simply intended to rebut

Defendants’ arguments in favor of a 25-year sentence, but the statements could have

easily influenced the district court to impose a harsher sentence than that which the

government had agreed to recommend. Ultimately, however, we need not resolve

whether a breach of the plea agreement occurred because Defendants are not entitled

to relief even if we consider their appeal on the merits. We will therefore assume

without deciding that a breach did occur and that Defendants’ appellate waivers are

therefore unenforceable.

       On the merits, Defendants first argue that the government’s alleged breach of

the plea agreements justifies vacature of their sentences. They did not raise this claim



                                          -3-
before the district court, however, so the plain-error standard of review applies. See

Whitney, 673 F.3d at 970. Defendants must therefore establish that a “clear or

obvious” error occurred and that the error affected their “substantial rights.” See

Puckett v. United States, 556 U.S. 129, 135 (2009). An error impacts a defendant’s

“substantial rights” only if there is “a reasonable probability” that the error affected

the outcome of the sentencing. United States v. Gonzalez-Aguilar, 718 F.3d 1185,

1189 (9th Cir. 2013).

      Defendants cannot satisfy this standard because the proceedings below indicate

that the district court reached its decision without reliance on the government’s

statements. Instead, the court became familiar with the brutality of Defendants’ crime

by presiding over their extensive change-of-plea hearings and by reviewing

Defendants’ detailed Presentence Reports. The court thus had an ample independent

basis for concluding that Defendants’ crime warranted a harsh sentence, leaving no

reasonable probability that the government’s alleged breach affected the outcome of

the sentencing.

        Defendants next argue that the district court violated their due process rights

by not providing advance notice of (1) its intent to impose an upward sentencing

variance, and (2) the grounds upon which that variance was based. This court’s

precedent forecloses Defendants’ argument. In United States v. Christensen, 732 F.3d

1094 (9th Cir. 2013), this court held that “[a] district court is not required—either by
                                          -4-
the Federal Rules of Criminal Procedure or by the Due Process Clause—to give

advance notice of its intent to impose a sentence outside the advisory Guidelines

range.” Id. at 1102. It also concluded that the district court “committed no error,

much less plain error, by failing to provide advance notice of the precise grounds upon

which the 19–month upward variance to [defendant’s] sentence was based.” Id.

      In the present case, the district court considered the Guidelines range and then

applied an upward variance to impose sentences outside that range. Consistent with

Christensen, the court “[was] not required—either by the Federal Rules of Criminal

Procedure or by the Due Process Clause—to” give “advance notice of its intent to do

so,” or to “provide advance notice of the precise grounds upon which the . . . upward

variance . . . was based.” Id. There was thus no error entitling Defendants to relief.

      Defendants next argue that the imposition of life sentences violated the Eighth

Amendment’s prohibition on cruel and unusual punishment. They principally rely on

Graham v. Florida, 560 U.S. 48 (2010), and Atkins v. Virginia, 536 U.S. 304 (2002).

The Supreme Court ruled in the first case that the Eighth Amendment “prohibits the

imposition of a life without parole sentence on a juvenile offender who did not

commit homicide.” Graham, 560 U.S. at 82. It ruled in the second case that the

Eighth Amendment forbids “the execution of mentally retarded criminals.” Atkins,

536 U.S. at 321. But neither Defendant in this case is a juvenile or mentally retarded.

In addition, both Defendants in this case committed a homicide and neither Defendant
                                          -5-
has been sentenced to death. Graham and Atkins are consequently inapplicable to

Defendants’ case. Their Eighth Amendment claim is also without merit because life

imprisonment is the presumptive penalty for first-degree murder. See 18 U.S.C.

§ 1111(b) (“Whoever is guilty of murder in the first degree shall be punished by death

or by imprisonment for life . . . .”).

        Defendants finally contend that their sentences were improperly influenced by

consideration of other crimes committed in the District of Oregon. They did not raise

this claim before the district court, however, so the plain-error standard of review is

again applicable. Defendants must therefore show a “reasonable probability” that the

district court’s consideration of other crimes affected the outcome of their sentencing.

See Gonzalez-Aguilar, 718 F.3d at 1189. The court, however, dismissed the other

crimes that it considered as “not . . . reasonably comparable” to Defendants’ crime.

It then explained that the need to impose a comparable sentence in this case was an

“academic” issue that was “[not] a factor that really provide[d] any help” in

determining the correct sentence. The consideration of other crimes thus appears to

have played little if any role in the district court’s sentencing decision, so Defendants

cannot prevail under the plain-error standard of review.

       For all of the above reasons, WE AFFIRM the sentence in each case.




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