                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 08-3080
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Eastern District of Arkansas.
Jeffrey Lawrence Bracy,                 *
                                        * [UNPUBLISHED]
             Appellant.                 *
                                   ___________

                             Submitted: February 9, 2010
                                Filed: February 23, 2010
                                 ___________

Before BYE, BOWMAN, and BENTON, Circuit Judges.
                           ___________

PER CURIAM.

      After Jeffrey Bracy pled guilty to a weapon offense, the district court1 varied
upward from the advisory Guidelines sentencing range and imposed a sentence of 48
months in prison and three years of supervised release. On appeal, Bracy argues that
the district court committed procedural error by failing to properly consider
appropriate 18 U.S.C. § 3553(a) factors, that the sentence was substantively
unreasonable, and that the government breached the plea agreement by failing to
honor its plea-agreement promise to recommend a sentence of time served.

      1
        The Honorable G. Thomas Eisele, United States District Judge for the Eastern
District of Arkansas.
        We review the imposition of sentences under a deferential abuse-of-discretion
standard, first ensuring that the district court committed no significant procedural
error, and then considering the substantive reasonableness of the sentence. See United
States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc). We find no
procedural error in this case. See United States v. Gray, 533 F.3d 942, 944 (8th Cir.
2008) (if district court references some considerations contained in § 3553(a), this
court is ordinarily satisfied that court was aware of contents of statute). We also find
that the sentence was not unreasonable, given the district court’s consideration of
Bracy’s mental-health issues, substance abuse, serious criminal history, need for
treatment in prison, and the need to protect the public from his further crimes. See
United States v. Ruvalcava-Perez, 561 F.3d 883, 887 (8th Cir. 2009) (finding extent
of variance reasonable where sentencing court considered defendant’s prior criminal
conduct and need to protect society).

       Finally, the government did not breach the plea agreement: Bracy tested
positive for illegal substances after he entered into the plea agreement, which excused
the government from its promise to recommend a sentence of time served. Further,
Bracy did not argue below that the government breached the plea agreement, and in
these circumstances, no plain error occurred. See Puckett v. United States, 129 S. Ct.
1423, 1428 (2009).

      Accordingly, we affirm the judgment of the district court, and we grant
counsel’s motion to withdraw.
                      ______________________________




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