                                                                           FILED
                            NOT FOR PUBLICATION                             APR 12 2010

                                                                       MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 08-50349

              Plaintiff - Appellee,              D.C. No. 2:08-cr-00051-SVW-1

  v.
                                                 MEMORANDUM *
RODOLFO AMAVIZCA TAMAYO,
AKA Rudolpho Amavizca, AKA Rudy
Tamayo Amavizca, AKA Rudy Amauizca,

              Defendant - Appellant.



                    Appeal from the United States District Court
                        for the Central District of California
                    Stephen V. Wilson, District Judge, Presiding

                              Submitted April 8, 2010 **
                                Pasadena, California

Before: SILVERMAN and GRABER, Circuit Judges, and SCULLIN, *** District
Judge.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable Frederick J. Scullin, Jr., Senior United States District
Judge for the Northern District of New York, sitting by designation.
                                          -2-

      Defendant appeals the 48-month prison sentence the district court imposed

following his open guilty plea to unlawful reentry by an alien previously removed

after an aggravated felony conviction, in violation of 8 U.S.C. § 1326(a)-(b). We

have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). For the

following reasons, we affirm in part, but vacate and remand in part to correct the

judgment.

      First, we reject as foreclosed Defendant’s argument that the district court

improperly assessed criminal history points for his most recent vandalism offense

instead of treating it as conduct relevant to the instant immigration offense.   See

United States v. Cruz-Gramajo, 570 F.3d 1162, 1168-74 (9th Cir.), cert. denied,

130 S. Ct. 646 (2009). We likewise find no plain error in the district court’s

assessment of an additional criminal history point because Defendant committed

the instant immigration offense while in custody. Assessing this additional point

was not a clear error of law and, even if error, Defendant still would have qualified

as a Category VI offender without the extra point. See Cruz-Gramajo, 570 F.3d at

1174-75; U.S.S.G. ch. 5, pt. A.

      Second, we reject Defendant’s argument that the district court procedurally

erred by failing to consider his arguments on mitigation and by resting its decision

on clearly erroneous facts. When it imposed sentence, the district court made clear
                                          -3-

that it had “considered the guidelines, the recommendation of the probation

department, and the [parties’] arguments and pleadings,” as well as the statutory

sentencing factors. See Rita v. United States, 551 U.S. 338, 356 (2007); United

States v. Daniels, 541 F.3d 915, 922 (9th Cir. 2008), cert. denied, 129 S. Ct. 1600

(2009). Moreover, the district court did not clearly err by characterizing one of

Defendant’s crimes as a “weapons violation” or by noting that Defendant

“defrauds innkeepers.” The presentence investigation report, to which Defendant

did not object, noted that Defendant violated statutes criminalizing assault with a

deadly weapon and defrauding innkeepers.

      Third, Defendant’s sentence was substantively reasonable. Although

Defendant presented evidence of a brain injury and his benign motivation for

committing the instant offense, the district court justifiably found that the balance

of the other factors under 18 U.S.C. § 3553(a) warranted greater punishment. The

district court therefore did not abuse its discretion in concluding that the applicable

Guidelines range of 33 to 41 months failed to account for either the entirety of

Defendant’s extensive criminal history (which included more than a half-dozen

unlawful reentries and several violent crimes) or his demonstrable recidivist

tendencies. The 48-month sentence adequately reflects the § 3553(a) factors and

was not unreasonable under the circumstances.
                                          -4-

      The reasonableness of the sentence is unaffected by the district court’s

failure to go along with the 21-month sentence to which the parties stipulated in

their plea agreement. Contrary to Defendant’s argument, the district court did

consider their agreement—which plainly stated that the district court was not

bound by it—but ultimately rejected it as inadequate. Defendant has also failed to

demonstrate how his sentence creates unwarranted sentencing disparities among

similarly situated defendants. He has not identified a similarly situated defendant

who received a lesser sentence.

      Fourth, the district court did not abuse its discretion by rejecting the parties’

plea agreement. District courts enjoy “broad discretion when choosing to accept or

reject plea agreements.” Morgan v. U.S. Dist. Court, 506 F.3d 705, 708 (9th Cir.

2007). The district court was required to “provide individualized reasons for

rejecting the agreement, based on the specific facts and circumstances presented.”

Id. at 711-12. That is precisely what the district court did here, basing its decision

on a reasonable determination that the agreed-upon sentence was inadequate in

light of Defendant’s criminal history.

      Fifth, we reject as foreclosed Defendant’s argument that the Fifth

Amendment prohibits a supervised release condition requiring him to report to
                                         -5-

probation within 72 hours of his reentry into the country. See United States v.

Rodriguez-Rodriguez, 441 F.3d 767, 772-73 (9th Cir. 2006).

      However, as the Government concedes, the case must be remanded so that

the district court can conform the written judgment to the oral pronouncement of

sentence with respect to supervised release conditions 2, 4, 5, and 6. See United

States v. Allen, 157 F.3d 661, 668 (9th Cir. 1998).

      AFFIRMED in part; VACATED and REMANDED in part.
