NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 19 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-50092
Plaintiff-Appellee, D.C. No. 3:16-cr-02732-LAB
v.
MEMORANDUM*
CARLOS PLACERES-CRUZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted January 16, 2018**
Before: REINHARDT, TROTT, and HURWITZ, Circuit Judges.
Carlos Placeres-Cruz appeals the 37-month sentence and 3-year term of
supervised release imposed following his guilty-plea conviction for attempted
reentry of a removed alien, in violation of 8 U.S.C. § 1326. We have jurisdiction
under 28 U.S.C. § 1291. We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Placeres-Cruz first contends that the government breached his plea
agreement by failing sufficiently to urge the merits of a four-level fast-track
departure at his sentencing hearing. “Courts enforce the literal terms of a plea
agreement,” United States v. Ellis, 641 F.3d 411, 417 (9th Cir. 2011), and here the
government complied with the literal terms of the agreement by recommending a
four-level fast-track departure and a sentence of 24 months’ custody. Because the
government did not agree to urge particular arguments in favor of the departure, its
failure to discuss the sparing of prosecutorial resources arising from the plea did
not constitute a breach. See United States v. Benchimol, 471 U.S. 453, 455-56
(1985) (per curiam); United States v. Johnson, 187 F.3d 1129, 1135 (9th Cir.
1999).
Placeres-Cruz next argues that the district court improperly based its
imposition of supervised release on punitive factors. Because Placeres-Cruz did
not raise this objection in the district court, we review for plain error. See United
States v. Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010). Even if the
district court plainly erred by considering the need to punish when deciding
whether to impose supervised release, see 18 U.S.C. § 3583(c), Placeres-Cruz has
not demonstrated a reasonable probability that he would have received a different
sentence absent the error. See United States v. Dallman, 533 F.3d 755, 762 (9th
Cir. 2008). Given the court’s expressed concern about Placeres-Cruz’s extensive
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and recidivist criminal and immigration history, and the need to deter, we conclude
the district court would have imposed supervised release absent any consideration
of punishment.
AFFIRMED.
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