                                                                           FILED
                           NOT FOR PUBLICATION                              OCT 15 2010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. 09-50520

              Plaintiff - Appellee,              D.C. No. 2:09-cr-00695-PA-1

  v.
                                                 MEMORANDUM *
ANTONIO GAMEZ ORTEGA, AKA
Antonio Gamez, Sr., AKA Antonio
Gamez, Jr., AKA Antonio Gamez, AKA
Ines Ortega,

              Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Central District of California
                     Percy Anderson, District Judge, Presiding

                            Submitted October 6, 2010 **
                               Pasadena, California

Before: HALL, FISHER, and BYBEE, Circuit Judges.

       Antonio Gamez-Ortega timely appeals the 77-month sentence imposed

following his guilty plea to being a deported alien found in the United States in

        *
             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).
violation of 8 U.S.C. § 1326. He alleges that the government breached its plea

agreement to recommend a sentence of 51 months’ imprisonment—a four-level

downward departure from the 77 to 96 month Guideline range—by telling the district

court that he was a recidivist with a violent past. He also alleges that the district court

erred by omitting from its judgment an exception to a special condition of supervised

release that the court included in its oral pronouncement of sentence. We affirm the

judgment as modified.

       The facts of this case are known to the parties and we need not repeat them.

       Gamez-Ortega argues for the first time on appeal that the government

contradicted its recommendation of a 51-month sentence, and thereby breached its

plea agreement, by describing his prior crimes to the district court. The government

breaches its plea agreement to recommend a sentence “if, while making the

recommendation, the prosecutor contradicts that recommendation with statements

indicating a preference for a harsher sentence.” United States v. Camarillo-Tello, 236

F.3d 1024, 1027 (9th Cir. 2001).

       Even if the statements constituted a breach of the plea agreement, Gamez-

Ortega has not established that any such breach was plain error. First, he has not

shown that the breach was “plain,” meaning “clear” or “obvious.” See United States

v. Olano, 507 U.S. 725, 734 (1993). The government’s comments about Gamez-


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Ortega’s   violent   past   were   accompanied     by   the   government’s     repeated

recommendation that Gamez-Ortega receive the sentence of 51 months.

      Gamez-Ortega has also failed to show that the breach affected his substantial

rights by “affect[ing] the outcome of the district court proceedings.” Puckett v. United

States, 129 S. Ct. 1423, 1429 (2009) (quoting Olano, 507 U.S. at 734). See also

United States v. Campbell, 42 F.3d 1199, 1204 (9th Cir. 1994) (placing the burden on

the defendant). He claims that, had there been no breach, he would have been

sentenced to 51 months rather than to the 77 months that he ultimately received. He

notes the similarities between the district court’s reasons for rejecting the plea

agreement and the government’s comments about Gamez-Ortega’s criminal past.

This, however, only shows that the court considered Gamez-Ortega’s criminal history

in sentencing him. It does not show that the court would have sentenced him to 51

months rather than 77 months, or that it would have ignored his criminal history, had

the government not described his criminal history in its sentencing memorandum.

Indeed, the PSR also contained the details of Gamez-Ortega’s criminal history. Thus

the district court would have received this information regardless of the government’s

sentencing memorandum.

      Gamez-Ortega also argues that a 51-month sentence would have been the

longest term of imprisonment he had yet received, and that it thus would have been


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sufficient to achieve the goals of sentencing. It is speculation to suggest that, without

the breach, the district court would have opted for 51 months. Thus, Gamez-Ortega

has not demonstrated plain error.

      Gamez-Ortega next contends that the written judgment and commitment order

must be modified because it conflicts with the oral pronouncement of sentence. In the

oral pronouncement, the district court required Gamez-Ortega to obtain approval from

the probation officer prior to obtaining or possessing any identification document in

any name other than his true legal name. The written judgment, however, does not

contain an exception for identification documents in Gamez-Ortega’s own name. The

government does not object to modification of the written judgment to incorporate this

exception. Accordingly, the judgment shall be modified to prohibit Gamez-Ortega on

supervised release from obtaining or possessing any form of identification in any

name other than his true legal name without the prior written approval of the probation

officer. See United States v. Hicks, 997 F.2d 594, 597 (9th Cir. 1993) (“[W]here there

is a direct conflict between an unambiguous oral pronouncement of sentence and the

written judgment and commitment, . . . the oral pronouncement, as correctly reported,

must control.” (quoting United States v. Munoz-Dela Rosa, 495 F.2d 253, 256 (9th

Cir. 1974))).

      The judgment is AFFIRMED as MODIFIED.


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