                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 12-1642
                        ___________________________

                             United States of America

                       lllllllllllllllllllll Plaintiff - Appellee

                                          v.

                                  Radames Rivera

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                    Appeal from United States District Court
                for the Eastern District of Arkansas - Little Rock
                                 ____________

                         Submitted: September 17, 2012
                           Filed: December 12, 2012
                                [Unpublished]
                                ____________

Before RILEY, Chief Judge, SMITH and COLLOTON, Circuit Judges.
                              ____________

PER CURIAM.

      Radames Rivera pleaded guilty, pursuant to a written plea agreement, to
conspiracy to distribute less than 100 grams of heroin, in violation of 21 U.S.C.
§ 846. The district court1 sentenced Rivera to 100 months' imprisonment, an upward
variance from the Guidelines range of 37 to 46 months' imprisonment. On appeal,
Rivera first argues that the government breached the plea agreement when it did not
recommend a sentence within the Guidelines range. Second, he asserts that the district
court procedurally erred by failing to properly consider "the need to avoid
unwarranted sentence disparities among defendants with similar records who have
been found guilty of similar conduct" under 18 U.S.C. § 3553(a)(6). Finally, he
contends that his sentence is substantively unreasonable. We affirm.

                                   I. Background
       Following an investigation into the use of mail to distribute heroin within the
Federal Correctional Complex (FCC) in Forrest City, Arkansas, Rivera, along with
codefendants Miguel Estrella, Samuel Bension Ventura, and Gordon King, was
charged with conspiracy to distribute less than 100 grams of heroin, in violation of
§ 846.

       Rivera pleaded guilty, pursuant to a written plea agreement, to the charge. In
the plea agreement, Rivera and the government entered into stipulations regarding
Rivera's base-offense level and adjustments to his offense level. Both parties
understood that the district court was "not bound by these stipulations" and that
Rivera could not withdraw his guilty plea if the district court failed to accept the
stipulations. The plea agreement also contained the following paragraph about the
Guidelines:

            6.     SENTENCING GUIDELINES: It is specifically understood
      by the defendant that the Sentencing Guidelines are not mandatory but
      are advisory, and that the Court is to consult them in determining the
      appropriate sentence. The defendant understands that the determination

      1
       The Honorable J. Leon Holmes, United States District Judge for the Eastern
District of Arkansas.

                                         -2-
      of the applicability of the Guidelines and of the appropriate sentence
      will be made by the Court. The defendant is aware that any estimate of
      the probable sentencing range under the Sentencing Guidelines that the
      defendant may have received from the defendant's counsel, the United
      States, or the Probation Office, is merely a prediction, not a promise,
      and is not binding on the United States, the Probation Office, or the
      Court. The United States makes no promise or representation
      concerning what sentence the defendant will receive and the defendant
      cannot withdraw a guilty plea, or otherwise avoid the defendant's
      obligations under this Agreement and Addendum, based upon the actual
      sentence imposed by the Court. The parties understand and agree that if
      the [G]uideline[s] range is greater or less than the defendant or the
      United States expected it to be, and/or the sentence imposed by the
      Court is greater or lesser than anticipated, neither the defendant nor the
      United States will be allowed to withdraw, nor request withdrawal of,
      the guilty plea, nor be excused from any obligation under this
      Agreement and Addendum.

(Emphases added.)

        At the change-of-plea hearing, the district court advised Rivera that because
the Guidelines are merely advisory, it would consult them but was "not required to
follow them." The court informed Rivera that because the Guidelines are advisory,
it "has the authority to impose a sentence outside the [G]uideline[s] range," including
"a sentence that's more severe than the [G]uideline[s] range." At the court's request,
the government summarized the plea agreement, explaining the parties' agreement
that (1) Rivera's "base offense level [is] 16," (2) "the offense level should be
increased by two levels because the object of the offense was the distribution of a
controlled substance in a prison," (3) "Rivera is eligible for a three-point reduction
for acceptance of responsibility," and (4) "[n]either party w[ould] seek an increase or
decrease in the offense level for [Rivera's] role" or "any additional increases or
decreases under Section 2D1.1 or Chapter 3 of the [G]uidelines." The government



                                         -3-
stated the parties' "acknowledg[ment] that the Court is not bound by these
stipulations."

       Rivera confirmed that the government's statement was "an accurate summary
of the essential terms of the plea agreement" and that "this written plea agreement
represent[ed] the whole agreement between [Rivera] and the government." The court
then asked Rivera whether he "believe[d] [that he] ha[d] an agreement with the
government as to the sentence that [the district court was] going to impose . . . [at]
sentencing"; that is, whether Rivera and the government "ha[d] an agreement for a
specific sentence." Rivera responded, "No." After hearing a summary of the
government's evidence and Rivera's explanation of his guilt, the district court
accepted Rivera's guilty plea.

       At sentencing, the court accepted the presentence investigation report (PSR)
without any objections. As provided in the PSR and the plea agreement, the court
calculated a total offense level of 15. Consistent with the PSR, the court also
calculated a criminal history of category V. "Based on an offense level of 15 and a
criminal history category of V," the court calculated a Guidelines range of "37 to 46
months." Neither party objected to the court's calculation of the Guidelines range.
Rivera's counsel then orally moved for a departure under U.S.S.G. § 5K2.23 to reduce
the term of imprisonment by 20 months to give Rivera credit for the time that he
previously served. The district court withheld ruling on the motion until imposition
of the sentence.

        The government then called United States Postal Inspector David Barrett, who
testified about the investigation. Following Barrett's testimony, the government asked
for an upward variance. The government highlighted Rivera's swift resumption of
criminal behavior after release from prison and the length of sentences that Rivera's
codefendants received. Specifically, Ventura received a 60-month sentence, and
Estrella received a 180-month sentence. The government argued that Rivera

                                         -4-
"deserve[d] more than Mr. Ventura's 60 months" but deferred to the court as to the
extent of the upward departure.

       In response, Rivera's counsel "d[id] not deny" that Rivera "has a lengthy
criminal history," but counsel requested that the court consider "all relevant factors,
the fact that he's been incarcerated, the information regarding the packaging, who sent
who what, and then just take into account the fact that Mr. Rivera did plead guilty,
and he's not running from that."

      Following counsels' arguments, the district court imposed Rivera's sentence,
explaining its responsibility to impose a sentence under § 3553(a). The court
described its duties to include

      tak[ing] into account the nature and circumstances of the offense and the
      history and characteristics of the defendant, and then impos[ing] a
      sentence that reflects the seriousness of the offense, to promote respect
      for the law, to provide just punishment for the offense, to afford
      adequate deterrence to criminal conduct, to protect the public from
      further crimes of the defendant, to avoid unwarranted sentencing
      disparities among defendants with similar records who have been found
      guilty of similar conduct.

The court determined that 120 months was a reasonable sentence for Rivera and then
deducted an additional 20 months from that sentence to give Rivera credit for time
served. Therefore, Rivera received a sentence of 100 months' imprisonment.

       Neither party objected to "the form of the sentence." The court then asked
Rivera whether there was "anything about this that you think is contrary to your plea
agreement or any promises that have been made to you." Rivera's counsel responded,
"I think the only argument that my client would have is that he wasn't prepared for an
upward departure from the [G]uidelines. But I'll explain, of course, how that works


                                         -5-
and why he was able to request that upward variance, Your Honor." The court
recognized counsel's statement as an objection and overruled the objection.

                                     II. Discussion
       On appeal, Rivera first argues that the government breached the plea agreement
when it did not recommend a sentence within the Guidelines range. Second, he asserts
that the district court procedurally erred by failing to properly consider "the need to
avoid unwarranted sentence disparities among defendants with similar records who
have been found guilty of similar conduct" under 18 U.S.C. § 3553(a)(6). Finally, he
contends that his sentence is substantively unreasonable.

                                   A. Plea Agreement
       Rivera argues that the government breached the plea agreement when it failed
to recommend a sentence within the Guidelines range and instead requested an
upward variance, stating that (1) "the [G]uideline[s] range in this case is way too
low"; (2) "there was some question about whether or not Mr. Rivera would be a
career offender, and he did not qualify, but when you look at his criminal history, it's
a pretty long one, and it's actually a pretty violent one, as well, when you look at his
earlier crimes"; and (3) "we're going to ask the Court to either depart or vary upwards
and give him at least—well, he deserves more than Mr. Ventura's 60 months, and
we'll leave that up to the discretion of the Court. But certainly he deserves more than
Mr. Ventura."

      Rivera failed to raise "the issue of breach of the plea agreement to the district
court"; as a result, "our review is for plain error." United States v. Mesteth, 687 F.3d
1034, 1037 (8th Cir. 2012).2 To prevail "under a plain-error standard of review,"


      2
       Rivera concedes in his brief that plain-error review applies, as he argues that
"the government breaching its own plea agreement is plain error that affects
substantial rights." (Emphasis added.)

                                          -6-
Rivera bears the burden of "show[ing] that there was an error, the error is clear or
obvious under current law, the error affected [Rivera's] substantial rights, and the
error seriously affects the fairness, integrity, or public reputation of judicial
proceedings." Id. (quotation and citation omitted).

       Rivera relies on United States v. Baker, 674 F.3d 1066 (8th Cir. 2012), in
support of his argument that the government breached the plea agreement by not
recommending a sentence within the Guidelines range. Baker is inapposite. In that
case, "the [g]overnment agreed [in the plea agreement] to recommend a sentence at
the low end of [the defendant's] advisory [G]uidelines range." Id. at 1067. Unlike the
plea agreement in Baker, the government in the present case never agreed to
recommend any particular sentence based on the Guidelines or otherwise. The parties
only stipulated to Rivera's base-offense level and adjustments to his offense level,
recognizing that the court was not bound by the stipulations. Furthermore, ¶ 6 of the
plea agreement shows that the government was not obligated to recommend a
particular sentence. To the contrary, it confirms Rivera's understanding that (1) the
district court would "determin[e] the appropriate sentence," (2) "any estimate of the
probable sentencing range . . . that [Rivera] may have received from . . . the United
States . . . is merely a prediction, not a promise, and is not binding on the United
States," and (3) the government "makes no promise or representation concerning what
sentence [Rivera] will receive."

       At the change-of-plea hearing, the district court asked Rivera whether he
"believe[d] [that he] ha[d] an agreement with the government as to the sentence that
[the district court was] going to impose . . . [at] sentencing"; that is, whether Rivera
and the government "ha[d] an agreement for a specific sentence." Rivera responded,
"No." We hold that the government complied with the terms of the plea agreement,
and no error—plain or otherwise—occurred.




                                          -7-
                                   B. Sentencing
      Rivera also challenges his 100-month sentence,3 asserting both procedural error
and substantive unreasonableness.

       We review a district court's imposition of a sentence under a "deferential
abuse-of-discretion standard." United States v. Feemster, 572 F.3d 455, 461 (8th Cir.
2009) (en banc) (quotations and citations omitted). Our first task is to "ensure that the
district court committed no significant procedural error." Id. (quotation and citation
omitted). "In the absence of procedural error below, we should then consider the
substantive reasonableness of the sentence imposed under an abuse-of-discretion
standard." Id. (quotation and citation omitted).

                                1. Procedural Error
        A district court commits procedural error when it "fail[s] to calculate (or
improperly calculat[es]) the Guidelines range, treat[s] the Guidelines as mandatory,
fail[s] to consider the [18 U.S.C.] § 3553(a) factors, select[s] a sentence based on
clearly erroneous facts, or fail[s] to adequately explain the chosen
sentence—including an explanation for any deviation from the Guidelines range." Id.
(quotation and citation omitted).

      Here, Rivera asserts that the district court procedurally erred by failing to
properly consider § 3553(a)(6)—"the need to avoid unwarranted sentence disparities
among defendants with similar records who have been found guilty of similar
conduct." At sentencing, the district court stated:

      Mr. Ventura was sentenced to 60 months. I don't remember what his
      criminal history was. But his involvement in the case, I think it's fair to
      say he was less culpable than Mr. Rivera. Mr. Estrella would have been

      3
      As indicated supra, the district court reduced Rivera's 120-month sentence by
20 months for time previously served.

                                          -8-
      equally or perhaps more culpable. And his criminal history put him in
      the career offender category, which Mr. Rivera is not, and so he's not
      going to get sentenced as though he was in the career offender category,
      but I think he lies somewhere between Mr. Ventura and Mr. Estrella.

      According to Rivera, the district court should not have compared codefendant
Ventura's and Rivera's criminal record in fashioning Rivera's sentence because "the
transcript is bare as to Ventura's criminal record" and the district court "could not
remember what . . . Ventura's . . . criminal history was." (Quotation omitted.)

       "While § 3553(a)(6) requires courts to consider 'the need to avoid unwarranted
sentence disparities among defendants with similar records who have been found
guilty of similar conduct,' (emphasis added), it does not prohibit a sentencing court
from finding that a disparity is, in fact, 'warranted.'" United States v. Boneshirt, 662
F.3d 509, 519 (8th Cir. 2011) (citing United States v. Vasquez, 433 F.3d 666, 671 (8th
Cir. 2006) (finding that a sentencing disparity between codefendants was "not
unwarranted" where one "was responsible for a larger quantity of drugs and had a
greater criminal history" than the other)).

        Here, the district court could not recall what Ventura's "criminal history was,"
but it found that Ventura "was less culpable than Mr. Rivera" and that Estrella was
"equally or perhaps more culpable. And his criminal history put him in the career
offender category, which Mr. Rivera is not."4 The court concluded that Rivera's
conduct "lies somewhere between Mr. Ventura and Mr. Estrella." Thus, the district
court was evaluating the culpability levels of the various defendants in the present


      4
       The government made the court aware of Ventura's criminal history, stating,
"Just so the Court is aware, I do believe Mr. Ventura was a career offender, but he
had a 5K motion, and that's how the Court got to 60 months, just so you're aware."
The court noted the correction.


                                          -9-
offense, not their criminal histories. Rivera's "sentence is reasonable . . . because the
disparity in this case is not unwarranted." Vasquez, 433 F.3d at 671. The district court
gave Rivera "a greater sentence than [Ventura]" because it found Rivera more
culpable. Id.

      Therefore, we conclude that no procedural error occurred.

                          2. Substantive Reasonableness
      Rivera argues that his sentence is substantively unreasonable because even
though "the high end of the [G]uideline[s] range was 46 months," the district court
"varied more than two and a half times the 46[-]month recommendation and found
a 120-month sentence to be fit."5 He notes that his sentence is "120 times the statutory
minimum sentence."

       "In conducting [substantive-reasonableness] review, we are to take into account
the totality of the circumstances, including the extent of any variance from the
Guidelines range." Feemster, 572 F.3d at 461 (quotation and citation omitted). We
are prohibited from "apply[ing] a presumption of unreasonableness if the sentence is
outside the Guidelines range," "requir[ing] extraordinary circumstances to justify a
sentence outside the Guidelines," and "us[ing] . . . a rigid mathematical formula that
uses the percentage of a departure as the standard for determining the strength of the
justifications required for a specific sentence." Id. at 461–62 (quotations and citation
omitted). "Instead, we may consider the extent of the deviation, but must give due
deference to the district court's decision that the § 3553(a) factors, on a whole, justify
the extent of the variance." Id. (quotation and citation omitted). We may not reverse
the district court's chosen sentence even though "we might reasonably have


      5
        Rivera acknowledges that "[t]he court . . . granted a 20-month adjustment to
comport with another sentence in another case wherein the trial court in another
district expressed a desire that its sentence be run concurrent with the case at hand."

                                          -10-
concluded that a different sentence was appropriate." Id. at 462 (quotation and
citation omitted). "Substantive appellate review in sentencing cases is narrow and
deferential." United States v. Mangum, 625 F.3d 466, 469 (8th Cir. 2010) (quotation
and citation omitted).

       We hold that the upward variance is substantively reasonable. In fashioning
Rivera's sentence, the district court focused on Rivera's criminal history. The court
also noted that (1) "the [G]uideline[s] range understate[d] the seriousness of the
offense," (2) Rivera had failed to "learn much respect for the law," (3) "the need for
adequate deterrence [was] high," and (4) "the need to protect the public from further
crimes of [Rivera]" constituted a "fairly significant" factor. Based on the district
court's sentencing colloquy, we hold that the district "court . . . provided sufficient
justification for its decision that an above-[G]uidelines sentence was warranted, and
thus we must give due deference to the district court's decision that the § 3553(a)
factors, on a whole, justify the extent of the variance." Mangum, 625 F.3d at 470
(quotations and citation omitted).

                                III. Conclusion
      Accordingly, we affirm the judgment of the district court.
                     ______________________________




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