United States v. Shabazz

Case: 20-60687 Document: 00515830642 Page: 1 Date Filed: 04/21/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
April 21, 2021
No. 20-60687
Lyle W. Cayce
Summary Calendar
Clerk
United States of America,
Plaintiff—Appellee,
versus
Montarius Montrael Shabazz,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 1:19-CR-52-1
Before Clement, Higginson, and Engelhardt, Circuit Judges.
Per Curiam:*
Pursuant to a plea agreement, Montarius Montrael Shabazz pleaded
guilty to one count of possession of a firearm by an unlawful user of a
controlled substance. The district court sentenced Shabazz to 90 months of
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 20-60687 Document: 00515830642 Page: 2 Date Filed: 04/21/2021
No. 20-60687
imprisonment, which was within the lower half of the applicable guidelines
range. He now appeals his sentence.
Although his plea agreement contained an appeal waiver, Shabazz
argues that his appeal is not barred because the Government breached the
agreement by supporting the wrong standard to determine his base offense
level and thereby eviscerated its promise to recommend that the court
impose a sentence within the lower 50 percent of the applicable guidelines
range. Shabazz further claims that the sentence imposed is procedurally
unreasonable.
Shabazz’s argument concerning a breach of his plea agreement is
subject to plain error review because he did not raise it in the district court.
See United States v. Cluff, 857 F.3d 292, 297 (5th Cir. 2017). The argument
fails because he does not show error. See Puckett v. United States, 556 U.S.
129, 135 (2009). At sentencing, the Government complied with the
unambiguous terms of the plea agreement by recommending that Shabazz be
sentenced within the lower 50 percent of the guidelines range. The language
of the plea agreement and the plea agreement supplement does not contain
any reference to relevant conduct, Shabazz’s base offense level, or any
government duty related to the proper calculation of the guidelines range.
The attempt to hold the Government to promises that are not contained in
the plea agreement amounts to an unreasonable understanding of the plea
agreement. See United States v. Hinojosa, 749 F.3d 407, 413 (5th Cir. 2014);
United States v. Harper, 643 F.3d 135, 139 (5th Cir. 2011).
Shabazz’s appeal waiver, which the Government invokes, bars his
challenge to the procedural reasonableness of his sentence. See United States
v. Bond, 414 F.3d 542, 544 (5th Cir. 2005). Accordingly, the Government's
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Case: 20-60687 Document: 00515830642 Page: 3 Date Filed: 04/21/2021
No. 20-60687
request to dismiss the appeal is granted. See United States v. Story, 439 F.3d
226, 230 n.5 (5th Cir. 2006).
DISMISSED.
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