                                                                           FILED
                           NOT FOR PUBLICATION                              JUL 15 2013

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-30275

              Plaintiff - Appellee,              D.C. No. 2:11-cr-06056-LRS-1

  v.
                                                 MEMORANDUM*
ROBERT SILVIO AGLI,

              Defendant - Appellant.


                    Appeal from the United States District Court
                      for the Eastern District of Washington
                     Lonny R. Suko, District Judge, Presiding

                             Submitted July 11, 2013**
                               Seattle, Washington

Before: M. SMITH and N.R. SMITH, Circuit Judges, and WALTER, Senior
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 Donald E. Walter, Senior District Judge for the United
States District Court for the Western District of Louisiana, sitting by designation.
      1. Agli argues that the district court should have granted his motion to

suppress drug paraphernalia police discovered during a search of Lee Armfield’s

apartment. This argument fails for two reasons.

      First, Agli did not challenge the district court’s finding that he lacked Fourth

Amendment standing in his opening brief. Therefore, he has waived that issue.

Koerner v. Grigas, 328 F.3d 1039, 1048 (9th Cir. 2003) (“[W]e will not ordinarily

consider matters on appeal that are not specifically and distinctly argued in

appellant’s opening brief.” (internal quotation marks omitted)). Without standing,

Agli may not challenge the search of Armfield’s apartment.

      Second, Agli has not shown that the district court clearly erred when it found

that Armfield validly consented to the search of his own apartment. See United

States v. Washington, 490 F.3d 765, 769 (9th Cir. 2007); United States v. Murphy,

516 F.3d 1117, 1122 (9th Cir. 2008) (“It is well established that a person with

common authority over property can consent to a search of that property without

the permission of the other persons with whom he shares that authority.”). The

district court’s conclusion that Armfield consented to the search was based

primarily on Armfield’s and Officer Peterson’s credibility. A determination based

on the credibility of witnesses cannot be clearly erroneous. See Anderson v. City of

Bessemer City, 470 U.S. 564, 573-75 (1985) (holding that the trial judge cannot


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commit clear error when deciding on the credibility of witnesses). That Officer

Peterson did not inform Armfield that he could withhold his consent is not

dispositive. See Schneckloth v. Bustamonte, 412 U.S. 218, 229-32 (1973).

      2. Agli next challenges his sentence, because the government breached the

plea agreement by recommending a sentence using a Base Offense Level of 9, after

agreeing that the correct Base Offense Level was 7. We reject this argument.

      We review the breach of the plea agreement for plain error, because Agli’s

counsel failed to object before the district court. Agli’s counsel did point out the

discrepancy between the Base Offense Level in the plea agreement and that in the

pre-sentence investigation report. However, this is insufficient to preserve a

challenge to the sentence based on a breach of the plea agreement. See United

States v. Maldonado, 215 F.3d 1046, 1051 (9th Cir. 2000); see also United States

v. Cannel, 517 F.3d 1172, 1176 (9th Cir. 2008).

      Under plain error review, we cannot conclude that any error affected Agli’s

substantial rights. Maldonado, 215 F.3d at 1051. Even had the government

recommended a Base Offense Level of 7 according to the plea agreement, that

recommendation would not have changed Agli’s sentence. The district court

correctly determined that the Sentencing Guidelines specify that Agli’s true Base

Offense Level is 9, without relying on the government’s recommendation.


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AFFIRMED.




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