United States Court of Appeals
           For the Eighth Circuit
       ___________________________

               No. 13-1834
       ___________________________

            United States of America

       lllllllllllllllllllll Plaintiff - Appellee

                          v.

          Maurice Suton Anton Sayles

     lllllllllllllllllllll Defendant - Appellant
        ___________________________

               No. 13-1874
       ___________________________

            United States of America

       lllllllllllllllllllll Plaintiff - Appellee

                          v.

             Martinus Antuan Sayles

     lllllllllllllllllllll Defendant - Appellant
                     ____________

     Appeal from United States District Court
for the Western District of Missouri - Springfield
                 ____________
                           Submitted: February 14, 2014
                               Filed: June 6, 2014
                                 ____________

Before RILEY, Chief Judge, LOKEN and BYE, Circuit Judges.
                              ____________

BYE, Circuit Judge.

       Martinus Antuan Sayles ("Martinus") and Maurice Suton Anton Sayles
("Maurice") each pleaded guilty to conspiracy to commit wire fraud and the district
court1 sentenced each to eighty-five months of imprisonment. Martinus and Maurice
now appeal the sentences. We affirm each sentence.

                                          I

       Twin brothers Martinus and Maurice engaged in a scheme whereby they would
steal checks, forge checks, purchase merchandise, then return the merchandise for
cash. The loss attributable to the scheme was $5,990. On April 4, 2012, an
indictment was filed in the Western District of Missouri, charging Martinus and
Maurice with conspiracy to commit wire fraud. Maurice was also charged with three
counts of wire fraud.

       Martinus pleaded guilty to conspiracy to commit wire fraud without a written
plea agreement. At sentencing, pursuant to the United States Sentencing Guidelines
Manual ("U.S.S.G."), the district court determined Martinus had an offense level of
7, a criminal history category of VI, and a guidelines range of 15-21 months. The
government sought a sentence at the high end of the guidelines range and the district


      1
       The Honorable Greg Kays, United States District Judge for the Western
District of Missouri.

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court varied upward because of the serious nature of the crime, Martinus's criminal
history, the need to deter Martinus from future crimes, and a need to protect the
public. The district court sentenced Martinus to eighty-five months of imprisonment.

       Maurice pleaded guilty pursuant to a written plea agreement to conspiracy to
commit wire fraud. The plea agreement prevented the government from seeking a
sentence higher than the guidelines range as calculated by the district court. Maurice
was sentenced by the district court after Martinus, but on the same day. The district
court applied a three-level enhancement pursuant to U.S.S.G. § 3B1.1(b) for
Maurice's role as a manager or supervisor and subsequently calculated Maurice had
an offense level of 13, a criminal history category of VI, and a guidelines range of 33-
41 months. The government breached the plea agreement and asked for a sentence
of at least eighty-five months, arguing Maurice was the primary motivator of the
conspiracy and had a criminal history category similar to Martinus, thus making a
sentence of less than eighty-five months of imprisonment disproportionate to the
sentence imposed on Martinus. The district court varied upward because of Maurice's
criminal history and his role as the leader of the conspiracy and sentenced Maurice
to eighty-five months of imprisonment.

                                           II

       We review the substantive unreasonableness of sentences "under a standard
akin to an abuse-of-discretion standard, cognizant that it will be the unusual case
when we reverse a district court sentence–whether within, above, or below the
applicable Guidelines range–as substantively unreasonable." United States v.
VandeBrake, 679 F.3d 1030, 1037 (8th Cir. 2012) (internal quotation marks and
citation omitted). When arguments were not raised below, they are reviewed for plain
error. United States v. Smith, 573 F.3d 639, 659 (8th Cir. 2009). Under plain error
review, it is the defendant's burden to prove (1) there was error, (2) that was plain,
and (3) affected substantial rights. United States v. Burnette, 518 F.3d 942, 947 (8th

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Cir. 2008) (citing Johnson v. United States, 520 U.S. 461, 466-67 (1997); Fed. R.
Crim. Pro. 52(b)).

                                           A

       Martinus contends his sentence of eighty-five months is substantively
unreasonable. A sentence may be unreasonable if the district court fails to consider
a relevant factor which should have received significant weight; gives significant
weight to an improper or irrelevant factor; or considers the appropriate factors but
commits a clear error of judgment. United States v. Haack, 403 F.3d 997, 1004 (8th
Cir. 2005). A district court is required to impose a sentence which is "sufficient, but
not greater than necessary" to satisfy the statutory goals of sentencing. 18 U.S.C.
§ 3553(a). A district court must consider the guidelines range, but may vary from the
range to "tailor the sentence in light of the other statutory concerns" of § 3553(a).
United States v. Booker, 543 U.S. 220, 245-46 (2005). If a district court varies from
the advisory guidelines range, the sentence can be reasonable so long as the district
court offers appropriate justification under the factors of § 3553(a). United States v.
Plaza, 471 F.3d 876, 879 (8th Cir. 2006). "The greater the variance from the advisory
guidelines range, the greater the justification must be for that variance." Id.

       The district court gave four reasons for varying upward from the guidelines
range: (1) the serious nature of the crime, (2) Martinus's criminal history, (3) the need
to deter Martinus from future crimes, and (4) a need to protect the public. All were
permissible reasons for varying from the guidelines. See 18 U.S.C. § 3553(a). The
primary justification behind the upward variance was Martinus's significant criminal
history of fraud. The district court noted Martinus had twenty-eight criminal history
points, but the guidelines stops counting criminal history points at thirteen, thus a
significant portion of Martinus's criminal history was not taken into account in the
guidelines calculation. We find no basis for concluding the sentence is unreasonable.
The district court considered appropriate factors in varying from the guidelines and

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adequately explained its sentence. See, e.g., United States v. Hill, 552 F.3d 686, 690-
92 (8th Cir. 2009) (affirming an above-guidelines sentence where the district court
adequately explained its sentence, noting the sentencing judge is in a "superior
position" to evaluate the facts of any given case and judge their significance against
the § 3553(a) factors).2

                                          B

      Maurice argues the plea agreement should be unenforceable because the
government breached the agreement, the district court committed procedural error by
improperly calculating Maurice's guidelines range, and the district court imposed a
substantively unreasonable sentence.

       Maurice argues the plea agreement should be deemed unenforceable because
the government breached the plea agreement. Maurice waived his right to appeal as
part of his plea agreement; however, because the government breached the plea
agreement, the appeals waiver is unenforceable. United States v. Lovelace, 565 F.3d
1080, 1084 (8th Cir. 2009). When a defendant seeks to avoid an appeal waiver
contained in a plea agreement by arguing, for the first time on appeal, the government
breached the plea agreement, we review the forfeited and related claims under plain
error analysis. Id. at 1086. To show the breach affected his due process rights,
Maurice "must show that his sentence was affected by the breach." Id. at 1088. In
other words, Maurice must show a "reasonable probability, based on the appellate
record as a whole, that but for the error he would have received a more favorable
sentence." United States v. Pirani, 406 F.3d 543, 552 (8th Cir. 2005) (en banc)
(quotations omitted).


      2
       We have examined the other issues raised by Martinus in his pro se filings but
find no other claims merit discussion. Therefore, we affirm those issues without
comment. See 8th Cir. R. 47B.

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       The plea agreement did not bind the district court, and, reviewing the record,
there is no indication that, but for the government's comments, the district court
would not have varied upward. The district court acknowledged Maurice had a lesser
criminal history than his brother, but also focused on Maurice being a leader and
Maurice, unlike Martinus, having violent felonies in his criminal history. The district
court did not vary as substantially upward with Maurice as with Martinus, but the
district court made clear it viewed the brothers as equally culpable in the conspiracy.
The district court stated to Maurice, "I believe that you deserve the same punishment
as your brother based upon [the fact that] his criminal history is worse than yours,
[and] the fact that you were a manager/supervisor." Because the district court would
have sentenced Maurice to the same sentence even without the government's breach
of the plea agreement, we cannot say the breach of the plea agreement requires
reversal under the plain error standard.

       On appeal, Maurice argues for the first time the district court committed
procedural sentencing error. Maurice does not contest he deserves a three-level
enhancement under U.S.S.G. § 3B1.1(b) for being a manager or supervisor. Maurice
instead argues Martinus had an equal role in supervising and planning the conspiracy
and the district court erred by focusing on Maurice as a leader but not Martinus as a
leader. And, ultimately, because Martinus had a more substantial criminal history,
the court erred in sentencing Maurice to the same term of imprisonment as Martinus.
Even though Maurice had a lesser criminal history than Martinus, Maurice's
guidelines range was higher and the district court varied upward less with Maurice
than with Martinus. See Plaza, 471 F.3d at 879 (noting a greater variance from the
advisory guidelines range requires a greater justification). The district court
sufficiently explained the defendant-specific facts relevant to sentencing Maurice and
the district court did not plainly err in sentencing Maurice to the same term of
imprisonment as Martinus.




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      Finally, Maurice contends his sentence of eighty-five months is substantively
unreasonable. During the sentencing hearing, the district court noted Maurice had a
substantial criminal history, including a history of fraud crimes and violent felonies;
noted Maurice had not been deterred by a number of short sentences; and noted
Maurice was a supervisor of the conspiracy. These are permissible reasons for
varying from the guidelines. See 18 U.S.C. § 3553(a). We find no basis for
concluding the sentence is unreasonable. See, e.g., Hill, 552 F.3d at 690-92.

                                          III

      Accordingly, we affirm both sentences.
                     ______________________________




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