                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JAN 18 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

GOVERNMENT OF GUAM,                             No.    18-10242

                Plaintiff-Appellee,             D.C. No. 1:16-cr-00010-FMTG

 v.
                                                MEMORANDUM*
MARIO FERNANDO J. CORTEZ,

                Defendant-Appellant.

                  Appeal from the United States District Court
                            for the District of Guam
             Frances M. Tydingco-Gatewood, Chief Judge, Presiding

                           Submitted January 15, 2019**

Before:      TROTT, TALLMAN, and CALLAHAN, Circuit Judges.

      Mario Fernando J. Cortez appeals from the district court’s judgment and

challenges the 33-month sentence imposed following his guilty-plea conviction for

attempt to evade and defeat tax, in violation of 26 U.S.C. § 7201, and fraud and

false statements, in violation of 26 U.S.C. § 7206(1). We have jurisdiction under



      *
             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).
28 U.S.C. § 1291, and we affirm, but remand to correct the judgment.

      Cortez contends that the government breached the plea agreement by failing

to move for an additional one-level reduction for acceptance of responsibility

under U.S.S.G. § 3E1.1(b). Reviewing de novo, see United States v. Whitney, 673

F.3d 965, 970 (9th Cir. 2012), we conclude that the government did not breach.

The agreement unambiguously stated that the government would move for an

additional one-level adjustment for acceptance of responsibility “if U.S.S.G.

§ 3E1.1(b) applies.” As the government explained at sentencing, section 3E1.1(b)

did not apply because Cortez’s notification of his intention to plead guilty was not

sufficiently timely to permit the government to avoid preparing for trial. See

U.S.S.G. § 3E1.1(b) & cmt. n.6.

      Cortez also contends that the district court erred by not departing downward

under U.S.S.G. § 5H1.4 based on his physical illnesses. We review the denial of a

departure not for procedural correctness, but rather as part of our review of the

substantive reasonableness of the sentence. See United States v. Mohamed, 459

F.3d 979, 986-87 (9th Cir. 2006). Notwithstanding Cortez’s physical impairments,

his within-Guidelines sentence is substantively reasonable in light of the 18 U.S.C.

§ 3553(a) sentencing factors and the totality of the circumstances, including the

nature of the offense. See Gall v. United States, 552 U.S. 38, 51 (2007).

      The district court erred by electing to run Cortez’s supervised release terms


                                          2                                     18-10242
consecutively. See 18 U.S.C. § 3624(e). Accordingly, we remand for the district

court to amend the judgment to reflect that the supervised release terms shall run

concurrently.

      AFFIRMED; REMANDED to correct the judgment.




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