United States Court of Appeals
                        For the Eighth Circuit
                    ___________________________

                            No. 19-3775
                    ___________________________

                         United States of America

                    lllllllllllllllllllllPlaintiff - Appellee

                                       v.

                         Tavon Tarrell Timberlake

                   lllllllllllllllllllllDefendant - Appellant
                                   ____________

                 Appeal from United States District Court
                      for the District of Minnesota
                              ____________

                         Submitted: June 15, 2020
                        Filed: September 11, 2020
                              [Unpublished]
                              ____________

Before KELLY, ERICKSON, and STRAS, Circuit Judges.
                           ____________

PER CURIAM.
       Pursuant to a written plea agreement, Tavon Timberlake pleaded guilty to
failing to surrender for service of sentence in violation of 18 U.S.C. § 3146(a)(2),
(b)(1)(A)(ii). The district court1 imposed a 36-month sentence. Timberlake appeals.

      In their plea agreement, the parties agreed on Timberlake’s offense level but
noted “that the defendant’s actual criminal history and related status will be
determined by the Court based on the information presented in the Presentence
Report [PSR] and by the arguments made by the parties at the time of sentencing.”
According to the agreement, the government believed Timberlake’s criminal history
category was VI, whereas Timberlake believed it was V. Depending on the final
calculation, the parties anticipated the Guidelines range would be either 18 to 24
months’ or 21 to 27 months’ imprisonment.

      The United States Probation Office, however, recommended a higher
Guidelines range than either party anticipated. The PSR calculated a criminal history
category VI but also recommended a 3-level enhancement pursuant to United States
Sentencing Guidelines § 3C1.3 because Timberlake committed the instant offense
while he was on release. See USSG § 3C1.3 (“If a statutory sentencing enhancement
under 18 U.S.C. § 3147 applies, increase the offense level by 3 levels.”); 18 U.S.C.
§ 3147 (providing an additional penalty for “an offense committed while released
under this chapter”). The PSR’s recommended Guidelines range was 30 to 37
months’ imprisonment.

      The government subsequently moved for an upward departure to 36 months’
imprisonment based on underrepresented criminal history. See USSG § 4A1.3. The
government explained that the 3-level enhancement recommended in the PSR was
“inconsistent with the [plea] Agreement” and agreed that “it is bound by the terms of


      1
      The Honorable Nancy E. Brasel, United States District Judge for the District
of Minnesota.

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the Agreement.” Thus, it sought an upward departure to reach a sentence of 36
months. Timberlake did not file a written opposition to the motion, but defense
counsel did “aptly point[] out” to the government that it was bound by the terms and
conditions of the plea agreement. The government withdrew its motion at sentencing.

       Timberlake did not file written objections to the PSR but stated in his Position
Regarding Sentencing that a § 3C1.3 enhancement “makes no sense” because
Timberlake could not be convicted of failure to surrender for service of sentence
unless he was on release under supervision. At sentencing, defense counsel expressly
conceded that “the law supports the [3-level] enhancement” and requested a
downward variance instead. The district court rejected Timberlake’s request and
sentenced him to 36 months’ imprisonment with two years of supervised release. It
noted that “[e]ven if the guidelines were without the three-level enhancement that has
been applied here, I would find that 36 months is appropriate.”

       On appeal, Timberlake first argues the government breached the plea
agreement by moving for an upward departure. Because Timberlake did not raise this
argument below, we review the issue for plain error. See Puckett v. United States,

, 135 (2009) (standard of review). Under plain error review, Timberlake
must show (1) an error (2) that is plain and (3) that affects his substantial rights.
United States v. Olano, 

, 732 (1993). We will exercise our discretion
to correct such an error only if it “seriously affects the fairness, integrity or public
reputation of judicial proceedings.”

without deciding that the government breached the plea agreement
by filing and then withdrawing a motion for upward departure, the district court did
not commit plain error. The uncontested Guidelines range was 30 to 37 months’
imprisonment, and it is not plain that the district court erred in sentencing Timberlake
to a within-range sentence of 36 months. Further, there is no indication that the
government’s motion affected Timberlake’s substantial rights. Timberlake fails to

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provide any evidence that the district court selected 36 months based on the
government’s withdrawn motion rather than on permissible sentencing factors. See
United States v. Pirani, 

, 550 (8th Cir. 2005) (en banc) (“The defendant
has the burden of proving plain error . . . .”).

       Next, Timberlake contends that the district court improperly applied the 3-level
enhancement pursuant to § 3C1.3. Whatever its relative merits, Timberlake waived
this argument when he conceded below that “the law supports the enhancement.” By
agreeing with the district court that he was not making “an objection to the guideline
calculation” but instead was requesting a variance based on “the way [the
enhancement] applies in this case,” Timberlake intentionally relinquished or
abandoned his right to challenge the application of the enhancement. See United
States v. Harrison, 

, 806 (8th Cir. 2005) (defining waiver as “the
intentional relinquishment or abandonment of a known right” (cleaned up)).

      We affirm the judgment of the district court.
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