United States v. Baggett , 310 F. App'x 641 ( 2009 )

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          IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 12, 2009
No. 08-60329
Summary Calendar               Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
LEMONT BAGGETT
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 2:07-CR-164-1
Before WIENER, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Lemont Baggett appeals his guilty plea conviction and 30-month sentence
for aiding and abetting in passing counterfeit United States obligations and
securities. Baggett argues that the Government breached the plea agreement
because it did not request a sentence at the bottom of the sentencing guidelines
range and it moved for a sentence above the advisory guidelines range. The
Government argues that there was no provision in the plea agreement with
respect to the sentence to be imposed.
*
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should not be published and is not precedent except under the limited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.
No. 08-60329
The plea agreement demonstrates that the Government did not promise
to recommend a sentence at the low end of the guidelines range. Baggett
produced no evidence to support his alleged understanding of the terms of the
agreement. Baggett has not shown by a preponderance of the evidence that the
Government breached the plea agreement. See United States v. Gonzalez,

309 F.3d 882

, 886 (5th Cir. 2002).
We reject Baggett’s argument that the district court erred by failing to give
him notice that it was going to vary from the guidelines range in violation of
Federal Rule of Criminal Procedure 32(h). The district court was not required
to give such advance notice. Irizarry v. United States,

128 S. Ct. 2198

, 2202-04
(2008). Further, Baggett was placed on notice that a variance might be imposed.
Baggett has not shown that the district court plainly erred in failing to provide
notice of its intent to impose a variance. See United States v. Baker,

538 F.3d 324

, 332 (5th Cir. 2008), cert. denied, ___ S. Ct. ___,

2009 WL 56591

(2009).
Baggett argues that the district court imposed an unreasonable sentence
by varying upward from the sentencing guidelines range to a sentence of 30
months. He contends that the district court erroneously relied on factors that
had been considered in calculating the guidelines range and did not consider the
mitigating factors that showed that he had changed his lifestyle.
We review a sentence to determine whether it is procedurally
unreasonable, and if it is not, we review for substantive reasonableness,
applying an abuse of discretion standard. Gall v. United States,

128 S. Ct. 586

,
597 (2007). A district court should use the advisory guidelines sentencing range
as “the starting point and the initial benchmark” but should then consider the
sentencing factors set forth in 18 U.S.C. § 3553(a).

Gall. 128 S. Ct. at 596

.
The record demonstrates that the district court relied on the proper
sentencing guidelines range as a starting point in its analysis and considered the
arguments of counsel and the mitigating circumstances presented by Baggett at
sentencing. The district court explained that Baggett’s criminal history dated
2
No. 08-60329
back to 1979, that Baggett had been convicted of murder and drug offenses, and
that Baggett committed the instant offense while he was under federal
supervision. The district court was authorized to consider factors already
considered by the Guidelines. See United States v. Brantley,

537 F.3d 347

, 350
(5th Cir. 2008). The district court did not commit procedural error at sentencing.
See

Gall, 128 S. Ct. at 597

.
The district court explained that a variance was necessary to deter Baggett
from engaging in further criminal conduct and to protect the public from further
crimes by Baggett, both § 3553(a) factors. Considering “the totality of the
circumstances,” the district court’s variance from the sentencing guidelines
range was not an abuse of discretion. See

Gall, 128 S. Ct. at 597

.
Baggett argues that he was denied the effective assistance of counsel
because counsel failed to object to the Government’s breach of the plea
agreement and to the variance at sentencing.          He argues that counsel’s
ineffective assistance rendered his plea involuntary.
Generally, we do not review claims of ineffective assistance of counsel on
direct appeal. United States v. Cantwell,

470 F.3d 1087

, 1091 (5th Cir. 2006).
We have “undertaken to resolve claims of inadequate representation on direct
appeal only in rare cases” where the record was sufficient to allow a fair
evaluation of the merits of the claim. United States v. Higdon,

832 F.2d 312

, 314
(5th Cir. 1987). Because the record does not provide sufficient detail to make a
fair evaluation of the claims of ineffective assistance that Baggett argues on
appeal, we decline to review the claims. See United States v. Gulley,

526 F.3d 809