United States v. Octavia Winters , 702 F. App'x 239 ( 2017 )

Case: 16-60754 Document: 00514241857 Page: 1 Date Filed: 11/17/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 16-60754
Fifth Circuit
Summary Calendar
FILED
November 17, 2017
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
OCTAVIA JERMAINE WINTERS, also known as Jermaine Octavia Winters,
Defendant-Appellant
Appeals from the United States District Court
for the Southern District of Mississippi
USDC No. 1:15-CR-57-5
Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
Octavia Jermaine Winters appeals his 120-month sentence of
imprisonment imposed following his guilty plea conviction for theft of a firearm
from a licensed dealer. Winters argues that the Government breached the
terms of the plea agreement wherein it agreed to recommend a sentence in the
lower 50% of the guidelines range and to dismiss the remaining counts in the
indictment. He argues that the inclusion of relevant conduct to calculate his
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 16-60754 Document: 00514241857 Page: 2 Date Filed: 11/17/2017
No. 16-60754
guidelines range constituted a breach. Winters further also challenges the
calculation of his offense level and his criminal history score. The Government
moves to dismiss the appeal or, alternatively, for summary affirmance based
on the appeal waiver provision in Winters’s plea agreement.
Although “an alleged breach of a plea agreement may be raised despite
a waiver provision,” United States v. Roberts, 624 F.3d 241, 244 (5th Cir. 2010),
our review of the record shows that the Government did not breach the plea
agreement as its conduct was not clearly or obviously inconsistent with a
reasonable understanding of its obligations, see Puckett v. United States, 556
U.S. 129, 133-38 (2009); United States v. Hinojosa, 749 F.3d 407, 411, 413 (5th
Cir. 2014).
Accordingly, the Government’s motion to dismiss the appeal is
GRANTED, and the appeal is DISMISSED. The Government’s alternative
motion for summary affirmance is DENIED.
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