### IN THE UNI TED STAT ES COURT OF APPEALS FOR THE FIF TH CIRCU IT

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 co u nts of aggravated identity t h e ft. He contends that the Government breached the plea agreement b y arguing at sentencing that the sentences should be consecutive. He maintains that the plea agreement req u i r e d the Government to recommend a two-year total sentence for the two counts of aggravated identity theft or, at a minimum, U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D July 8, 20 11 Lyle W . Cayce Clerk

Pur sua nt to 5 TH C IR

. R. 47.5 , the cou rt has det er m ine d tha t thi s opi nio n sho uld not be publ is hed and * is not pr ece den t e xce pt unde r t he l imite d ci rc um st anc es set fo rt h i n 5 TH C IR

. R. 47.5 .4. Case: 10-60837 Document: 00511534098 Page: 1 Date Filed: 07/08/2011No. 10-60837

t o r e m ai n s il e nt c o n c e r nin g w h e t h e r t h e s e n t e nc e s s ho ul d b e c o n c u rr e nt o r c o n s e c u ti v e . The Government moves to dismiss the appeal as barred by t h e appeal waiver in the plea agreement, arguing that it did not breach the plea agreement because the agreement did not pr e c lude the Government from requesting consecutive sentences. The Government alternatively moves f o r s ummary 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 a p p e l l ant makes such a showing, this court has the discretion to correct the error, but only if it seriously affects the fairness, inte g r i ty or public reputation of judicial proceedings. Id. Brown cannot satisfy the plain error standard. First, it is n o t clear or
o b v ious that the Government breached the plea agreement becaus e t h e 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). Afte r h e a r i ng arguments from both parties, the district c o urt ultimately determined that all of the sentences should be served consecutively and gave numerous reasons for t he sentence imposed, including Brown’s extensive cri m inal history. Brown has not shown that, but for the Government’s alleged breach, the district court would no t h a v e imposed consecutive sentences. See Puckett , 129 S. Ct. at 1432-33 & n.4; see also United

2 Case: 10-60837 Document: 00511534098 Page: 2 Date Filed: 07/08/2011No. 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 Gover n m e n t ’ s m otions to dismiss the appeal or in the al t e rnative for summary affirmance and for an extension of time to file a brief are denied. AFFIRMED; MOTIONS DENIED.

3 Case: 10-60837 Document: 00511534098 Page: 3 Date Filed: 07/08/2011