* Pursuant to 5TH CIR. R. 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this opinion should not be published and is not precedent except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 CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

February 21, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-61163

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

YUNNEL WILLIS,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Southern District of Mississippi

(4:05-CR-7-ALL)

--------------------

Before SMITH, WIENER, and OWEN, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Yunnel Willis appeals his guilty-plea

conviction and sentence for assault with a dangerous weapon in

Indian Country,in violation of 18 U.S.C. §§ 113(a)(3) and 1153. He

contends that the district court failed to articulate specific oral

and written reasons for its decision to impose a non-Guideline

sentence. He also contends that the non-Guideline sentence was

unreasonable because it gave significant weight to irrelevant or

improper factors already taken into account by the Guidelines. As

Willis did not object to the non-Guideline sentence in the district
2

court, we review it for plain error. See United States v. Jones,

444 F.3d 430, 436 (5th Cir.), cert. denied, 126 S. Ct. 2958 (2006).

The record reflects that the district court calculated the

applicable guideline range, used that range as a frame of

reference, and decided to deviate upwardly from that range based on

its consideration of individualized and proper 18 U.S.C. § 3553(a)

factors, including (1) the nature and circumstances of the instant

offense and Willis’s history and characteristics; (2) the need to

provide just punishment and deter criminal conduct; and (3) the

need to protect the public from further crimes by Willis. See

United States v. Smith, 440 F.3d 704, 707-09 (5th Cir. 2006).

Specifically, the district court noted that it had presided over

Willis’s prior juvenile conviction for manslaughter and that Willis

was not entitled to the same consideration he received in that case

when, after having killed someone with a knife, he wantonly engaged

in another violent act. The district court’s stated reasons for

the upward variance were not based on improper or irrelevant

factors and did not represent a clear error of judgment in

balancing the sentencing factors. The district court’s stated

reasons also allow us to determine that the non-Guideline sentence

is supported by § 3553(a) factors and is reasonable. See id.

Willis has failed to show error, plain or otherwise.

Willis also asserts that the district court committed

reversible error when it failed to give him prior notice of its

intent to impose a non-Guideline sentence and of the factual basis
3

for the non-Guideline sentence. As he did not object to the lack

of notice in the district court, we review this issue for plain

error. See Jones, 444 F.3d at 443.

Even if the district court’s failure to provide notice under

FED. R. CRIM. P. 32(h) constituted error that was plain, Willis

offers no argument or evidence suggesting that, with adequate

notice, he could have persuaded the district court to impose a

lower sentence. See id. Accordingly, Willis has failed to show

reversible plain error. 

Finally, Willis insists that the government breached his plea

agreement by arguing on appeal that the non-Guideline sentence was

reasonable. The government complied with its contractual

obligation to recommend that the district court impose a sentence

within the lower 10% of the applicable guideline range, inform the

probation office and district court of the agreement and the nature

and extent of Willis’s relevant activities, and make a

recommendation as to acceptance of responsibility. Further, the

only provision in the plea agreement discussing appeal was the

appellate-waiver provision. No reasonable reading of the plea

agreement would prohibit the government from arguing on appeal that

the non-Guideline sentence was reasonable. See United States v.

Cantu, 185 F.3d 298, 304 (5th Cir. 1999). Willis has failed to

show that the government breached the plea agreement. See United

States v. Laday, 56 F.3d 24, 26 (5th Cir. 1995). 
4

The district court’s judgment, specifically the non-guideline

sentence imposed, is

AFFIRMED.