                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                             FILED
                            FOR THE NINTH CIRCUIT                              SEP 11 2014

                                                                           MOLLY C. DWYER, CLERK
                                                                             U.S. COURT OF APPEALS

UNITED STATES OF AMERICA,                        No. 12-10106

              Plaintiff - Appellee,              D.C. No. 2:10-cr-00172-RLH-
                                                 GWF-1
  v.

MOSHE BARMUHA,                                   MEMORANDUM*

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Nevada
                  Roger L. Hunt, Senior District Judge, Presiding

                          Submitted September 8, 2014**
                            San Francisco, California

Before: SCHROEDER, OWENS, and FRIEDLAND, Circuit Judges.

       Moshe Barmuha appeals his guilty plea conviction and 92-month sentence

for conspiracy to interfere with commerce by threat and violence, in violation of

18 U.S.C. § 1951(a), and interstate foreign travel in aid of racketeering enterprises,


        *
             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).
in violation of 18 U.S.C. §§ 2, 1952(a)(3). We have jurisdiction under 28 U.S.C.

§ 1291. We affirm.

      We review for an abuse of discretion the denial of a request to withdraw a

guilty plea. United States v. Briggs, 623 F.3d 724, 727 (9th Cir. 2010). Where a

defendant fails to raise an objection to a sentencing error in the district court, we

review for plain error. United States v. Bonilla-Guizar, 729 F.3d 1179, 1187

(9th Cir. 2013). We review for an abuse of discretion whether a sentence is

substantively reasonable. Gall v. United States, 552 U.S. 38, 51 (2007).

      Barmuha contends that the district court abused its discretion by not

allowing him to withdraw his guilty plea because his language barrier prevented

him from understanding the severity of his possible sentence. However, the record

reflects that Barmuha reviewed a translated plea agreement and had an interpreter

at the district court’s thorough plea colloquy. Therefore, the district court did not

abuse its discretion because Barmuha failed to provide a “fair and just reason” to

withdraw his guilty plea. Fed. R. Crim. P. 11(d)(2)(B); see also Briggs, 623 F.3d

at 728-29 (only in exceptional circumstances may a defendant change his plea

because he underestimated the severity of the sentence he faced).

      Barmuha contends, for the first time on appeal, that the district court

procedurally erred at sentencing by not grouping his counts under U.S.S.G.


                                           2
§ 3D1.2, thereby miscalculating the Guidelines range. The district court did not

plainly err because it is not obvious that the counts should be grouped.

See United States v. Anderson, 741 F.3d 938, 947 (9th Cir. 2013) (“[E]rror is only

plain where it is ‘clear and obvious.’” (citation omitted)).

      Also for the first time on appeal, Barmuha contends that the district court

procedurally erred at sentencing by failing to adequately explain its upward

departure from the Guidelines and by relying on a clearly erroneous fact or

inaccurate view of the law. Reviewing for plain error, we find none. The record

reflects that the district court adequately explained its upward departure based on

Barmuha’s foreign convictions and considered all of Barmuha’s arguments.

See United States v. Carty, 520 F.3d 984, 992-93 (9th Cir. 2008) (en banc).

      Finally, Barmuha contends that his sentence is substantively unreasonable.

Barmuha’s sentence, although an upward departure from the Guidelines range, is

substantively reasonable in light of the 18 U.S.C. § 3553(a) sentencing factors and

the totality of the circumstances, including Barmuha’s serious and violent foreign

convictions. See Gall, 552 U.S. at 51.

      AFFIRMED.




                                           3
