concurring in the judgment:
I agree with my colleagues that the sentence should be affirmed, but I reach that result via a different route. Specifically, I disagree with the conclusion that the government did not breach the plea agreement in this case. I conclude that the government did breach the agreement. Because I do not believe that the sentence imposed by the district court was affected in any way by that breach, however, I agree that the sentence should be affirmed.
I. Breach of the Plea Agreement
The government promised in the plea agreement to move for a three-level decrease for acceptance of responsibility. The recommendation contained in the Pre-senteneing Report (“PSR”) prepared by the probation officer included that three-level reduction for acceptance of responsibility. When it came time for sentencing, though, the government opposed that reduction and declined to move for the third of the three levels of reduction, which it had sole power to do under U.S.S.G. § 3El.l(b). It justified its action by pointing to Cannel’s submission to the court regarding sentencing, “including his contention that he did not distribute child pornography and his contention that his on-line chats were merely fantasy.” The government viewed those positions as contradicting acceptance of responsibility for his crime.
I do not believe that the government’s position was correct, so I conclude that its failure to honor the plea agreement constituted a breach of that agreement. Cannel did not disclaim responsibility for his crime. Notably, nowhere in his sentencing memorandum did Cannel deny that he had distributed child pornography. He simply denied that he distributed pornography in one manner stated in the PSR.
The PSR recommended a two-level distribution enhancement on the ground that Cannel had a video and a graphic image “available for downloading” in the shared folder of a peer-to-peer file sharing program. Cannel argued in his sentencing memorandum that “there is insufficient evidence to support this enhancement.” He argued that the fact that the files were present in his shared folder did not mean that the files were “post[ed] ... for public viewing” as required by U.S.S.G. § 2G2.2(b)(3)(F), cmt. n. 1. He also argued that there was no evidence that anybody actually downloaded the files from his folder. Cannel did not deny that he had distributed child pornography in other ways, nor did he deny that he “traded pictures with others in chat rooms,” as he had previously admitted. He simply advanced the legal argument that the basis articulated in the PSR was insufficient to support the recommended enhancement for distribution. That was a legal argument, made not by Cannel himself but by his defense attorney, and that attorney made this distinction clear to the trial court during the sentencing hearing. The legal arguments contained in the sentencing memorandum do not amount to a repudiation of Cannel’s admission that, as a factual matter, he had distributed child pornography, nor do they contradict his acceptance of responsibility for that offense.
Cannel did not deny responsibility for his crime by asserting that his discussions with “tim — 12—Seattle” were mere fantasy, or by submitting an evaluation by a clinical psychologist recounting that assertion. Cannel did not deny that he had possessed or distributed child pornography. The argument behind his assertion is simply that his conduct would not have led to an in-person encounter or caused any physical harm, factors which could have affected the district court’s determination of an appropriate sentence.
*1179I believe it is significant that despite the government’s arguments, the district court did not conclude that Cannel in fact failed to accept responsibility. Instead, it overruled the government’s objection to the reduction. That contradicts the current claim by the government — and the conclusion of the majority opinion — that the positions taken by Cannel justified the government’s failure to honor the plea agreement. Because Cannel did not deny responsibility or provide incomplete or inaccurate information in violation of the plea agreement, he did not relieve the government of its obligation to seek a three-level decrease for acceptance of responsibility. Accordingly, I conclude that the government breached the plea agreement by failing to do so.
II. Prejudice
Because Cannel did not preserve his breach argument by objecting to the district court, I agree with the majority opinion that we review for plain error, under which it is Cannel’s burden to establish prejudice. See United States v. Maldonado, 215 F.Sd 1046, 1051 (9th Cir.2000) (“A plain error is a highly prejudicial error affecting substantial rights.”) (citations omitted); United States v. Campbell, 42 F.3d 1199, 1204 (9th Cir.1994) (“Plain error is error that is clear under the law and that affects substantial rights. [The defendant] has the burden to establish that the error was prejudicial.”); accord United States v. Puckett, 505 F.3d 377 (5th Cir.2007) (affirming on plain error review where government admitted that it had breached plea agreement but defendant could not show prejudice).
Cannel cannot show prejudice because the government’s breach of the plea agreement did not increase the sentence imposed. The district court overruled the government’s objection to the two-level reduction for acceptance of responsibility. Without a motion by the government, the court did not have the power to reduce by a third level based on acceptance of responsibility, so it can be assumed that if the government had not breached, Can-nel’s base offense level would have been 30 rather than 31. Based on that calculation and his criminal history category, Cannel’s advisory guidelines range would have been 97 to 121 months rather than 108 to 135 months.
In the end, though, the district court imposed a sentence of 72 months, far below the low end of either of these guidelines ranges. This strongly supports the inference that the district court did not key off the bottom of the advisory range but rather calculated the appropriate sentence independently, as it is empowered to do. To the extent that acceptance of responsibility played a role in the court’s determination, the court was obviously aware of its disagreement with the government’s position that Cannel had repudiated his acceptance, so it must be assumed that the court took that into account.
Accordingly, Cannel has not shown that the government’s breach prejudiced him, and his sentence should be affirmed.