FILED
NOT FOR PUBLICATION OCT 08 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-50008
Plaintiff - Appellee, D.C. No. 2:12-cr-00936-PA-1
v.
MEMORANDUM*
ALEJANDRO MELCHOR GUTIERREZ,
AKA Alejandro Gutierrez Melchor,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Argued and Submitted May 15, 2014
Pasadena, California
Before: KOZINSKI, Chief Judge, and WARDLAW and FISHER, Circuit Judges.
Alejandro Melchor Gutierrez appeals the district court’s imposition of a 77-
month term of incarceration and a three-year term of supervised release, following
his conviction for being a removed alien found in the United States, in violation of
8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Melchor contends that the Government breached the Rule 11(c)(1)(C) plea
agreement by implicitly arguing for a sentence greater than that which the parties
had agreed to recommend. We hold that there was no plain error because, even
assuming breach, Melchor has not shown that the alleged error affected his
substantial rights. See United States v. Gonzalez-Aguilar, 718 F.3d 1185, 1188-89
(9th Cir. 2013). Furthermore, the district court did not abuse its discretion in
rejecting the plea agreement, because it adequately set forth its reasons for
rejection in light of the specific circumstances of this case. See United States v.
Harris, 679 F.3d 1179, 1182 (9th Cir. 2012).
Melchor also challenges the procedural and substantive reasonableness of
his term of imprisonment. Melchor’s procedural challenge fails under the plain
error standard because there is no reasonable probability that he would have
received a different sentence absent the district court’s alleged errors. See United
States v. Dallman, 533 F.3d 755, 762 (9th Cir. 2008). In addition, considering the
totality of the circumstances, including Melchor’s criminal history and prior
deportations, the within-Guidelines sentence is substantively reasonable. See
United States v. Gutierrez-Sanchez, 587 F.3d 904, 908 (9th Cir. 2009).
2
The district court did not plainly err by imposing a three-year term of
supervised released. See United States v. Valdavinos-Torres, 704 F.3d 679, 692-93
(9th Cir. 2012).
AFFIRMED.
3