NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 15 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 18-30021 Plaintiff-Appellee, D.C. No. 2:17-cr-00135-TSZ-4 v. YUNZHONG CHEN, MEMORANDUM* Defendant-Appellant. Appeal from the United States District Court for the Western District of Washington Thomas S. Zilly, District Judge, Presiding Argued and Submitted November 5, 2018 Seattle, Washington Before: McKEOWN and FRIEDLAND, Circuit Judges, and GAITAN,** District Judge. Yunzhong Chen appeals his sentence following his plea of guilty to Conspiracy to Use a Communication Facility to Promote Prostitution in violation of 18 U.S.C. §§ 371 and 1952, as well as the district court’s denial of Chen’s * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Fernando J. Gaitan, Jr., United States District Judge for the Western District of Missouri, sitting by designation. request for a transcript at governmental expense reflecting his change-of-plea hearing. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). Chen makes three arguments. First, he asserts that the Government breached the plea agreement at sentencing. Second, Chen argues that the district court’s comments at sentencing about his immigration status demonstrate that the district court improperly considered his national origin when it imposed a one-year sentence instead of the 364 days recommended by the Government, despite the court’s awareness that the one-day difference might carry adverse immigration consequences. And, third, Chen contends that delay stemming from the transcript denial violates his right to due process. Because we conclude that there was no breach, and that the sentence and transcript delay did not violate Chen’s constitutional rights, we affirm. “Plea agreements are contracts, and the government is held to the literal terms of the agreement.” United States v. Johnson, 187 F.3d 1129, 1134 (9th Cir. 1999). Although a sentencing recommendation need not be made enthusiastically, when the government obligates itself to make a recommendation at the low end of the guidelines range, it may not introduce information that serves no purpose but “to influence the court to give a higher sentence.” Id. at 1135. Here, the Government stipulated to Probation’s calculation of the sentence, 2 which included a minor role reduction, and recommended a sentence of 364 days imprisonment, thereby satisfying its promises to agree that Chen was a minor participant and to recommend a sentence below fifteen months. Chen admits that the Government followed the letter of the agreement, but he argues the Government’s statements contravened the agreement’s spirit by inflating his role in the conspiracy and hinting at additional criminal acts. But the plea agreement expressly allowed the parties to introduce additional facts, and the Government’s arguments were properly responsive to Chen’s request for home confinement, so we cannot conclude that they served no purpose but “to influence the court to give a higher sentence.” Id. Accordingly, there was no breach. Chen’s claim that the district court improperly considered his ...
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