NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 21 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, Nos. 18-50215
18-50290
Plaintiff-Appellee,
D.C. Nos. 2:18-cr-00176-PA-1
v. 2:11-cr-00992-PA-1
ALBERTO ESPINOZA GUTIERREZ,
AKA Alberto Espinoza, AKA Alberto MEMORANDUM*
Gutierrez, AKA Francisco Mangas, AKA
Alberto Ramirez,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Submitted October 15, 2019**
Before: FARRIS, LEAVY, and RAWLINSON, Circuit Judges.
In these consolidated appeals, Alberto Espinoza Gutierrez appeals the 46-
month sentence imposed following his guilty-plea conviction for being an illegal
alien found in the United States following deportation, in violation of 8 U.S.C.
*
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).
§ 1326, and the 18-month consecutive sentence imposed upon revocation of
supervised release. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Espinoza Gutierrez contends that the government implicitly breached the
parties’ plea agreement by making allegedly disparaging comments in its
sentencing memorandum regarding the seriousness of Espinoza Gutierrez’s
criminal history. Because Espinoza did not raise this argument in the district court,
we review for plain error. See United States v. Gonzalez-Aguilar, 718 F.3d 1185,
1187 (9th Cir. 2013). The record reflects that, in its sentencing memorandum and
at the sentencing hearing, the government stood by its recommendation that
Espinoza Gutierrez receive the sentence stipulated in the plea agreement. The
government’s discussion of Espinoza Gutierrez’s criminal history in the portion of
its sentencing memorandum addressing the need for a supervised release term was
not so inflammatory as to show that the government was “winking at the district
court to impliedly request a different outcome.” See United States v. Heredia, 768
F.3d 1220, 1231 (9th Cir. 2014) (internal quotation marks omitted). In any event,
Espinoza Gutierrez has not shown that any error affected his substantial rights. See
Gonzalez-Aguilar, 718 F.3d at 1187-90.
Espinoza Gutierrez next contends that the district court erred by failing to
explain its decision to reject the parties’ joint recommendation that no custodial
sentence be imposed for the supervised release violation. We review for plain
2 18-50215 & 18-50290
error, see United States v. Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir.
2010), and conclude that there is none. The record reflects that the district court
sufficiently explained that Espinoza Gutierrez’s criminal history, and his failure to
be deterred by previous sentences, justified a consecutive 18-month sentence. See
United States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en banc).
AFFIRMED.
3 18-50215 & 18-50290