NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 23 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 17-50216 Plaintiff-Appellee, D.C. No. 3:17-cr-00240-LAB v. MEMORANDUM* ALEJANDRO PARRA-RAMOS, Defendant-Appellant. Appeal from the United States District Court for the Southern District of California Larry A. Burns, District Judge, Presiding Submitted April 19, 2018** Before: THOMAS, Chief Judge, and TROTT and SILVERMAN, Circuit Judges. Alejandro Parra-Ramos appeals from the district court’s judgment and challenges the 24-month sentence imposed following his guilty-plea conviction for being a removed alien found in the United States, in violation of 8 U.S.C. § 1326. 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). Parra-Ramos argues for the first time on appeal that the prosecutor breached the terms of the parties’ plea agreement by stating that he would “take the fifth” in response to the district court’s request that he explain the reasoning behind the agreed-upon recommendation of a two-month sentence and by stating that there “[was]n’t any rationality” to the recommendation in light of the 84-month sentence recommended by the government in another illegal reentry case the same day. The government argues that Parra-Ramos waived this claim. We decline to decide whether Parra-Ramos waived his breach claim because, even if merely forfeited, he cannot establish plain error.1 See United States v. Whitney, 673 F.3d 965, 970 (9th Cir. 2012). Even if the government breached the plea agreement by implicitly disclaiming the agreed-upon recommendation, the breach did not affect Parra- Ramos’s substantial rights. See United States v. Gonzalez-Aguilar, 718 F.3d 1185, 1187 (9th Cir. 2013). At sentencing, the district court focused on Parra-Ramos’s five prior convictions for immigration offenses and his failure to be deterred by previous sentences. Even defense counsel recognized at sentencing that, in light of Parra-Ramos’s history, the court would be “disinclined” to follow the parties’ recommendation. Under these circumstances, there is no reasonable probability 1 We do not approve of “taking the fifth” when asked by a judge about the reasoning behind a plea agreement and then saying it had “no rationality.” We expect more serious responses by officers of the court, especially when the issue is the length of a defendant’s sentence. 2 17-50216 that the alleged breach affected the court’s sentencing determination. See id. at 1188-89. AFFIRMED. 3 17-50216 17-50216 Court of Appeals for the Ninth Circuit ca9 9th Cir. United States v. Alejandro Parra-Ramos 23 April 2018 Criminal Unpublished e13dc1adba4325d27d25414ad6c6b2b791f5bd16
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