NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 12 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-50508
Plaintiff-Appellee, D.C. No.
3:15-cr-01751-DMS-1
v.
JORGE NUNEZ-DUENAS, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Dana M. Sabraw, District Judge, Presiding
Argued and Submitted November 7, 2016
Pasadena, California
Before: BERZON, CHRISTEN, and NGUYEN, Circuit Judges.
Jorge Nunez-Duenas appeals his sentence of 48-months imprisonment for
illegal reentry after removal in violation of 8 U.S.C. § 1326. Nunez-Duenas argues
that the government acted in bad faith and breached the plea agreement by
recommending a Criminal History Category of VI based on a date of prior
imprisonment listed in the Presentence Investigation Report (“PSR”). The record
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
reflects that this date was obtained by a probation officer from searches of certain
state and federal databases and confirmed by the probation officer’s telephone
conversation with a California Department of Corrections representative. We have
jurisdiction under 28 U.S.C. § 1291. United States v. Jacobo Castillo, 496 F.3d
947, 957 (9th Cir. 2007) (en banc).1 We enforce Nunez-Duenas’ appeal waiver
and dismiss his appeal.
1. Nunez-Duenas contends that the government acted in bad faith in
arguing for a Criminal History Category of VI because there was not sufficient
evidence of the date of one imprisonment for revocation of parole, but he does not
challenge the accuracy of that date. We have rejected a parallel argument in a
similar context, holding that a district court does not abuse its discretion in
sentencing based on prior convictions in a PSR derived from the same databases
used here, so long as the defendant neither disputes the factual accuracy of the
information nor identifies indicia of unreliability. See United States v. Romero-
Rendon, 220 F.3d 1159, 1162–63 (9th Cir. 2000); United States v. Marin-Cuevas,
147 F.3d 889, 894–895 & n.6 (9th Cir. 1998). Nunez-Duenas offers no reason why
1
We need not resolve the parties’ dispute over whether the applicable standard of
review is clear error or de novo because the result is the same under either
standard. See United States v. Quach, 302 F.3d 1096, 1100 (9th Cir. 2002).
2
this precedent cannot apply where, as here, the plea agreement gave the
government discretion to recommend a sentence “as calculated by the Government
at the time of sentencing” and made clear that there was “no agreement as to [the]
defendant’s Criminal History Category.”
2. Nunez-Duenas argues that the date in the PSR was unreliable because
it was absent from a rap sheet summary attached to the criminal complaint with
which he was charged. This argument is unpersuasive because the rap sheet
summary does not purport to be a complete list of Nunez-Duenas’ dates of
incarceration.
3. Nunez-Duenas notes that the government stated, after losing its
request for a Criminal History Category of VI, that the district court “properly
calculated” a Criminal History Category of V. Nunez-Duenas cites no authority
suggesting that this stray remark, made in the context of an alternative argument
for a longer sentence, signifies anything more than the government’s submission to
the district court’s decision.
4. Because we hold that the government did not act in bad faith or
breach Nunez-Duenas’s plea agreement, we enforce the appellate waiver in Nunez-
Duenas’ plea agreement and dismiss his appeal. See United States v. Hernandez-
3
Castro, 814 F.3d 1044, 1046 (9th Cir. 2016).2
DISMISSED.
2
We DENY AS MOOT the government’s Motion to Supplement the Record.
4