                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        FEB 16 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No. 16-50401

                Plaintiff-Appellee,             D.C. No. 3:14-cr-00021-LAB

 v.
                                                MEMORANDUM*
CANDELARIO GONZALEZ-GARCIA,

                Defendant-Appellant.

                   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).
      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                                       16-50401
