United States of America v. Candelario Gonzalez-Garcia

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CANDELARIO GONZALEZ-GARCIA,
Defendant-Appellant.
No. 16-50401
D.C. No. 3:14-cr-00021-LAB
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted February 13, 2018**
Before: LEAVY, FERNANDEZ, and MURGUIA, Circuit Judges.
Candelario Gonzalez-Garcia appeals from the district court’s judgment and
challenges the 72-month sentence imposed upon remand following his guilty-plea
conviction for importation of methamphetamine, in violation of 21 U.S.C. §§ 952
and 960. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
* 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
FEB 16 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 2 --

2 16-50401
Gonzalez-Garcia argues for the first time on appeal that the government
breached the terms of the parties’ plea agreement by failing to honor its promise to
advocate for a minor role adjustment at sentencing. The government argues that
Gonzalez-Garcia waived this claim. We decline to decide whether Gonzalez-
Garcia waived his breach claim because, even if merely forfeited, Gonzalez-Garcia
cannot show plain error.1 See United States v. Whitney, 673 F.3d 965, 970 (9th
Cir. 2012). Any breach by the government did not affect Gonzalez-Garcia’s
substantial rights. See United States v. Gonzalez-Aguilar, 718 F.3d 1185, 1187
(9th Cir. 2013). The record reflects that the district court understood the arguments
in favor of a minor role adjustment, but did not find them convincing and would
not have granted the reduction even if the government had argued for it more
strenuously. Furthermore, the record reflects that, even if the court had been
convinced to grant a minor role adjustment, it would not have imposed a lower
sentence. Under these circumstances, there is no reasonable probability that the
alleged breach affected the court’s sentencing determination. See id. at 1188-89.
AFFRIMED.
1 Though we need not decide whether the government breached the plea
agreement, we do not approve of its lukewarm support for its joint
recommendation for a minor role adjustment as contemplated by the plea
agreement.

-- 2 of 2 --