United States v. Jose Deleon-Juarez

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 22 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 21-50243 Plaintiff-Appellee, D.C. No. 3:20-cr-02034-LAB-1 v. JOSE ANTONIO DELEON-JUAREZ, MEMORANDUM* Defendant-Appellant. Appeal from the United States District Court for the Southern District of California Larry A. Burns, District Judge, Presiding Submitted February 14, 2023** Pasadena, California Before: O’SCANNLAIN, HURWITZ, and BADE, Circuit Judges. Jose Deleon-Juarez challenges the 70-month sentence imposed following his guilty plea for being a removed alien found in the United States, in violation of 8 U.S.C. § 1326. Because the facts are known to the parties, we repeat them only as * 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). necessary to explain our decision. We have jurisdiction under 28 U.S.C. § 1291, and we affirm. Jose Deleon-Juarez claims for the first time on appeal that the government breached the plea agreement. Deleon-Juarez and the government dispute whether Deleon-Juarez waived his right to challenge the government’s alleged breach on appeal, and whether the government’s conduct constituted a breach. Even assuming no waiver, Deleon-Juarez has not shown that any alleged breach amounted to plain error. See United States v. Gonzalez-Aguilar, 718 F.3d 1185, 1187 (9th Cir. 2013). “Relief for plain error is available if there has been (1) error; (2) that was plain; (3) that affected substantial rights; and (4) that seriously affected the fairness, integrity, or public reputation of the judicial proceedings.” United States v. Cannel, 517 F.3d 1172, 1176 (9th Cir. 2008). To conclude that a defendant’s substantial rights were affected, “there must be a reasonable probability that the error affected the outcome of the sentencing.” United States v. Whitney, 673 F.3d 965, 972 (9th Cir. 2012) (simplified). At sentencing, the district court focused on Deleon-Juarez’s prior convictions for immigration offenses and his failure to be deterred by previous sentences. The district court expressly rejected the 51-month sentence requested by the government as insufficient to deter Deleon-Juarez. Under these circumstances, there is no 2 reasonable probability that the alleged breach affected the court’s sentencing determination. See Gonzalez-Aguilar, 718 F.3d at 1188–89. The judgment of the district court is AFFIRMED. 3