United States Court of Appeals

For the Eighth Circuit

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No. 13-1834

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Maurice Suton Anton Sayles

lllllllllllllllllllll Defendant - Appellant

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No. 13-1874

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Martinus Antuan Sayles

lllllllllllllllllllll Defendant - Appellant

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 Appeal from United States District Court 

for the Western District of Missouri - Springfield

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 Submitted: February 14, 2014

 Filed: June 6, 2014

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

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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

court sentenced each to eighty-five months of imprisonment. Martinus and Maurice

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now appeal the sentences. We affirm each sentence.

I

Twin brothers Martinus and Maurice engaged in a scheme whereby theywould

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

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

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 guidelinesrange 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 guidelinesrange 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 guidelinesrange, 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'ssignificant 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).

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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).

We have examined the other issuesraised by Martinus in his pro se filings but

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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

sufficientlyexplained 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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