United States of America v. Sebastian Colula-Morales

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
SEBASTIAN COLULA-MORALES,
Defendant-Appellant.
No. 18-50320
D.C. No.
3:18-mj-03285-WVG-BAS-1
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Cynthia A. Bashant, District Judge, Presiding
Submitted May 21, 2019**
Before: THOMAS, Chief Judge, FRIEDLAND and BENNETT, Circuit Judges.
Sebastian Colula-Morales appeals from the district court’s order affirming
the 50-day sentence imposed by the magistrate judge following Colula-Morales’s
guilty-plea conviction for illegal entry, in violation of 8 U.S.C. § 1325. Colula-
Morales contends that he is entitled to remand because the government breached
* 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).
FILED
MAY 23 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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its obligation to recommend a time-served sentence. We have jurisdiction under
28 U.S.C. § 1291, and we affirm.
We first reject the government’s argument that Colula-Morales’s appeal is
moot. The government has not met its “burden of establishing that there is no
effective relief that the court can provide,” Forest Guardians v. Johanns, 450 F.3d
455, 461 (9th Cir. 2006), because, although Colula-Morales has fully served his
sentence, he could withdraw his guilty plea in the event he succeeded on appeal.
See Buckley v. Terhune, 441 F.3d 688, 699 (9th Cir. 2006) (en banc).
Turning to the merits, we review Colula-Morales’s claim for plain error, see
United States v. Whitney, 673 F.3d 965, 970 (9th Cir. 2012), and conclude that
there is none. The record indicates that the government affirmatively made the
required time-served sentencing recommendation to the magistrate judge. The
government’s subsequent failure to reiterate that recommendation was not
tantamount to “winking at the district court to impliedly request a different
outcome.” United States v. Heredia, 768 F.3d 1220, 1231 (9th Cir. 2014) (internal
quotation marks omitted); see also United States v. Maldonado, 215 F.3d 1046,
1051-52 (9th Cir. 2000) (“When the government agrees to recommend a sentence
pursuant to a plea bargain, it need not explain its reasons nor make the
recommendation enthusiastically”).
AFFIRMED.

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