NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
UNITED STATES of America, Plaintiff-Appellee,
v.
Tito Salazar CRUZ, Defendant-Appellant.
No. 96-35498.
United States Court of Appeals, Ninth Circuit.
Submitted Jan. 21, 1997.*
Decided Jan. 23, 1997.
Before: O'SCANNLAIN, LEAVY, and KLEINFELD, Circuit Judges.
MEMORANDUM**
Tito Salazar-Cruz, a federal prisoner, appeals pro se the denial of his motion to vacate his sentence pursuant to 28 U.S.C. § 2255. He contends the government violated his plea agreement by allowing the district court to impose the 60-month statutory maximum sentence rather than recommending a 57-month sentence at the low end of his Sentencing Guidelines range. In the plea agreement, the government agreed to recommend "that Defendant be sentenced at the low end of the applicable range" and that he receive a three-level downward adjustment for acceptance of responsibility. At sentencing, however, Salazar-Cruz waived a presentence report and agreed with the government that his guidelines range exceeded the statutory maximum 60 months, and the district court therefore did not calculate the range. Under these circumstances, the government's failure to make the agreed-upon recommendations did not breach the plea agreement. See United States v. Johnson, 8 F.3d 1333, 1337 (9th Cir.1994) (in construing plea agreement, court must determine what defendant reasonably understood to be terms of agreement).
AFFIRMED.