IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-60837

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff–Appellee,

v.

JASON ANTOINE BROWN,

Defendant–Appellant.

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 3:10-CR-3

Before WIENER, PRADO, and OWEN, Circuit Judges. 

PER CURIAM:*

Jason Antoine Brown appeals the sentence imposed following his

convictions for one count of bank fraud and two counts of aggravated identity

theft. He contends that the Government breached the plea agreement by

arguing at sentencing that the sentences should be consecutive. He maintains

that the plea agreement required the Government to recommend a two-year

total sentence for the two counts of aggravated identity theft or, at a minimum,

United States Court of Appeals

Fifth Circuit

F I L E D

July 8, 2011

Lyle W. Cayce

Clerk

Pursuant to 5THCIR.R. 47.5, the court has determined that this opinion should not be published and *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.

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No. 10-60837

to remainsilent concerningwhether thesentencesshouldbeconcurrent or consecutive.

The Government moves to dismiss the appeal as barred by the appeal

waiver in the plea agreement, arguing that it did not breach the plea agreement

because the agreement did not preclude the Government from requesting

consecutive sentences. The Government alternatively moves for summary

affirmance and for an extension of time to file a brief.

Although Brown raised this argument in a pro se district court motion, he

filed it after he had filed a notice of appeal, which divested the district court of

jurisdiction. See United States v. Green, 882 F.2d 999, 1001 (5th Cir. 1989). 

Therefore, review is limited to plain error. See Puckett v. United States, 129 S.

Ct. 1423, 1433 (2009). To show plain error, the appellant must show a forfeited

error that is clear or obvious and that affects his substantial rights. Id. at 1429. 

If the appellant makes such a showing, this court has the discretion to correct

the error, but only if it seriously affects the fairness, integrity or public

reputation of judicial proceedings. Id.

Brown cannot satisfy the plain error standard. First, it is not clear or

obvious that the Government breached the plea agreement because the

agreement is silent regarding whether the sentences should be served

concurrently or consecutively. See Puckett, 129 S. Ct. at 1429. Further, Brown

has not shown that any alleged breach violated his substantial rights. See id.

The district court had discretion to determine whether to order that the sentence

for the second aggravated identity theft be served concurrently or consecutively. 

See 18 U.S.C. § 1028A(b)(4). After hearing arguments from both parties, the

district court ultimately determined that all of the sentences should be served

consecutively and gave numerous reasons for the sentence imposed, including

Brown’s extensive criminal history. Brown has not shown that, but for the

Government’s alleged breach, the district court would not have imposed

consecutive sentences. See Puckett, 129 S. Ct. at 1432-33 & n.4; see also United

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No. 10-60837

States v. Mondragon-Santiago, 564 F.3d 357, 364-65 (5th Cir. 2009). Therefore,

Brown has not shown that his substantial rights were violated. See Puckett, 129

S. Ct. at 1429. The Government’s motions to dismiss the appeal or in the

alternative for summary affirmance and for an extension of time to file a brief

are denied.

AFFIRMED; MOTIONS DENIED.

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