99 F3d 1147 United States v. Maldonado-Pineda

99 F.3d 1147

UNITED STATES of America, Plaintiff-Appellee,
v.
Jose MALDONADO-PINEDA, Defendant-Appellant. (Two Cases).

No. 96-30101, 96-30102.

United States Court of Appeals, Ninth Circuit.

Submitted Oct. 7, 1996.*
Decided Oct. 15, 1996.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Before: BEEZER, KOZINSKI and KLEINFELD, Circuit Judges.

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1

MEMOARNDUM**

2

Jose Maldonado-Pineda appeals his sentence under the Sentencing Guidelines. We affirm.

3

We decline to consider Maldonado-Pineda's contention that the government breached the plea agreement by recommending a sentence above the ten-year statutory mandatory minimum because he "failed to raise the breach of the plea agreement in district court." See United States v. Robertson, 52 F.3d 789, 791 (9th Cir.1994). Moreover, the government complied with the clear and unambiguous terms of the plea agreement when it recommended a sentence within the applicable guidelines range.

4

Maldonado-Pineda's contention that he is entitled to a downward adjustment of his offense level based upon his minor participant status is foreclosed by the explicit terms of the plea agreement. The parties stipulated to an adjusted offense level of 32 and a sentencing range of 168 to 210 months, as Maldonado-Pineda's counsel acknowledged at the sentencing hearing.

5

Finally, we reject Maldonado-Pineda's contention that the plea agreement erroneously states the base offense level for illegal reentry. The plea agreement correctly states that the base offense level for a violation of 8 U.S.C. § 1326(b)(2) is twenty-four. See U.S.S.G. § 2L1.2(b)(2). Maldonado-Pineda's reliance on the calculation of his base offense level in the Presentence Investigation Report (PSR) is misplaced. The PSR corresponds to Maldonado-Pineda's original guilty plea to a violation of 8 U.S.C. § 1326(b)(1), which was later withdrawn.

6

AFFIRMED.

*

The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4

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**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3