                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       NOV 17 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    16-10492

                Plaintiff-Appellee,             D.C. No. 4:16-cr-00142-JGZ

 v.
                                                MEMORANDUM*
BENITO REYES-SANTANA, a.k.a.
Gerardo Reyes, a.k.a. Benito Reyes-Santano,

                Defendant-Appellant.

                   Appeal from the United States District Court
                            for the District of Arizona
                    Jennifer Zipps, District Judge, Presiding

                          Submitted November 15, 2017**

Before:      CANBY, TROTT, and GRABER, Circuit Judges.

      Benito Reyes-Santana appeals his guilty-plea conviction and 46-month

sentence for attempted reentry of a removed alien, in violation of 8 U.S.C. § 1326.

We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

      Reyes-Santana argues that, during his plea colloquy, the district court


      *
             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).
violated Federal Rule of Criminal Procedure 11 by failing to (1) advise him of the

elements of the offense and (2) obtain a factual basis for his plea. Because Reyes-

Santana did not raise these objections below, we review for plain error. See United

States v. Dominguez Benitez, 542 U.S. 74, 80 (2004).

      To convict a defendant of attempted reentry, the government must show that

the defendant entered the United States “with the specific intent to enter the

country free from official restraint.” United States v. Argueta-Rosales, 819 F.3d

1149, 1156 (9th Cir. 2016) (internal quotations omitted). The record reflects that

the district court did not advise Reyes-Santana of this aspect of the offense during

the plea colloquy. We nevertheless affirm Reyes-Santana’s conviction because he

has not shown that the court’s error affected his substantial rights. See Dominguez

Benitez, 542 U.S. at 83 (to prevail on plain error review, defendant “must show a

reasonable probability that, but for the error, he would not have entered the plea”).

      Reyes-Santana also argues the district court erred by applying the 2015

Guidelines instead of the 2016 Guidelines. Reviewing for plain error, see United

States v. Waknine, 543 F.3d 546, 551 (9th Cir. 2008), we affirm Reyes-Santana’s

sentence. In light of a recent decision of this court, see United States v. Martinez,

870 F.3d 1163, 1169 (9th Cir. 2017), the sentencing range under the 2016

Guidelines is the same as under the 2015 Guidelines. Thus, any error in the court’s

use of the 2015 Guidelines did not affect Reyes-Santana’s substantial rights. See


                                        2                             16-10492
Waknine, 543 F.3d at 552 (a nonprejudicial error does not affect substantial rights).

      AFFIRMED.




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