FILED
NOT FOR PUBLICATION DEC 17 2009
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-50085
Plaintiff - Appellee, D.C. No. 3:08-cr-02589-LAB
v.
MEMORANDUM *
WILMER GIOVANY OLMEDO,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted November 17, 2009 **
Before: ALARCÓN, TROTT, and TASHIMA, Circuit Judges.
Wilmer Giovany Olmedo appeals from the 30-month sentence imposed
following his guilty-plea conviction for transporting illegal aliens and aiding and
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
SZ/Research
abetting, in violation of 8 U.S.C. § 1324(a)(1)(A)(ii) and (v)(II). We have
jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
The government contends that Olmedo waived his right to claim a breach of
the plea agreement. We need not rely on the waiver because the record reflects
that the government did not breach the agreement. See United States v. Johnson,
187 F.3d 1129, 1134-35 (9th Cir. 1999).
Olmedo also contends that his sentence is unreasonable because the district
court applied both a 6-month upward variance based on his “integral role” in the
offense and a 2-level minor role reduction, pursuant to U.S.S.G. § 3B1.2(b). He
also contends that the variance renders his sentence unreasonable because the
district court relied on prior apprehensions that are not sufficiently supported by
the record. The record reflects that the appellant’s sentence is not unreasonable in
light of the totality of the circumstances. See United States v. Carty, 520 F.3d 984,
993 (9th Cir. 2008) (en banc). Moreover, the district court’s prior apprehension
findings, in regard to the upward variance, do not constitute reversible error upon
this record. See United States v. Romero-Rendon, 220 F.3d 1159, 1165 (9th Cir.
2000).
AFFIRMED.
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