FILED
NOT FOR PUBLICATION MAR 12 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-10630
Plaintiff - Appellee, D.C. No. 1:12-cr-00642-LEK-1
v.
MEMORANDUM*
ALVAR GANTE TOLEDO,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Hawaii
Leslie E. Kobayashi, District Judge, Presiding
Argued and Submitted February 20, 2014
University of Hawaii, Manoa
Before: HAWKINS, McKEOWN, and BEA, Circuit Judges.
Alvar Toledo appeals the sentence entered in his case by the district court.
Because there was no objection at sentencing to breach of the plea agreement
between Toledo and the government, we review for plain error. Puckett v. United
States, 556 U.S. 129, 134–35 (2009). We affirm the district court.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
The information about Toledo’s long-term drug trafficking of approximately
38 pounds of methamphetamine was not protected by any agreement; there was
sufficient evidence that Toledo revealed the information shortly after his arrest.1
See U.S.S.G. § 1B1.8(b)(1). Nor did the government breach the plea agreement by
mentioning the 38 pounds of methamphetamine at sentencing; the plea agreement
clearly stated that Toledo was responsible for “not less than” 723.69 grams of
methamphetamine. Finally, given the other substantial information of drug
quantity provided the district court in the presentence report, any breach arising
from the prosecutor’s failure to argue that the correct starting point for sentence
calculation was Level 36, as the plea agreement provided, did not affect Toledo’s
“substantial rights” under plain error review. United States v. Olano, 507 U.S.
725, 734 (1993) (quoting Fed. R. Crim. P. 52(b)). The record shows that the court
was influenced by these considerations such that there was no “reasonable
probability that the error affected the outcome of the [sentencing].” United States
v. Whitney, 673 F.3d 965, 972 (9th Cir. 2012) (quoting United States v. Marcus,
560 U.S. 258, 262 (2010) (alteration in original); see also Puckett, 556 U.S. at
134–35.
AFFIRMED.
1
The panel declines to take judicial notice of the proffer letter dated
December 1, 2011.