                                                                            FILED
                            NOT FOR PUBLICATION                              MAR 15 2013

                                                                        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. 12-10113

              Plaintiff - Appellee,              D.C. No. 4:10-cr-03000-DCB-
                                                 HCE-1
  v.

JUAN ANTONIO ROBLES,                             MEMORANDUM *

              Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Arizona
                     David C. Bury, District Judge, Presiding

                            Submitted March 13, 2013 **
                             San Francisco, California

Before: McKEOWN, CALLAHAN, and IKUTA, Circuit Judges.

       Juan Robles appeals his conviction for possession with intent to distribute

marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(D), on the ground that

the district court erred in admitting at trial evidence derived from information he


        *
             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).
provided in a “free talk” conducted pursuant to an informal immunity agreement.

Robles also appeals his sentence. We have jurisdiction under 28 U.S.C. § 1291

and affirm.

      We review de novo the interpretation of an informal immunity agreement,

applying ordinary contract law principles and accepting factual determinations

unless they are clearly erroneous. United States v. Dudden, 65 F.3d 1461, 1467

(9th Cir. 1995). If in such an agreement the government “promises that the

statements will not be used against the defendant, it is also precluded from using

the statements to uncover other incriminating evidence, unless the agreement

expressly provides otherwise.” Id. (emphasis added). Robles’s agreement

unambiguously provided that, notwithstanding the government’s promise not to

offer in its case-in-chief or at sentencing “any statements made by [Robles] at the

meeting,” the government could use “information derived directly or indirectly

from the meeting for the purpose of obtaining and pursuing leads to other

evidence, which evidence may be used for any purpose, including any prosecution

of [Robles] by the government.” The district court’s admission of testimony from

a witness whom prosecutors identified after investigating statements made by

Robles at the free talk accorded with the terms of the agreement. Nor did the

district court abuse its discretion in admitting the testimony under Federal Rule of


                                         -2-
Evidence 404(b) for the purpose of proving Robles’s knowledge, lack of mistake,

and motive in relation to the drug offense.1

      Robles challenges his sentence on two grounds: imposing a two-level

Obstruction of Justice adjustment and declining to grant a two-level Acceptance of

Responsibility reduction. The Sentencing Guidelines provide that an Obstruction

of Justice adjustment applies where the defendant “willfully fail[s] to appear, as

ordered, for a judicial proceeding.” USSG § 3C1.1 cmt. n. 4(E). The district court

did not err in applying this enhancement because Robles fled the country before

trial concluded in violation of his conditions of release. Because Robles did not

object before the district court regarding an Acceptance of Responsibility

reduction, we review for plain error. United States v. Houston, 648 F.3d 806, 813

(9th Cir. 2011). The district court did not plainly err in denying the reduction

where Robles, in addition to absconding from trial, failed to take responsibility for

his crime at sentencing.

      AFFIRMED.




      1
         Because the terms of the agreement explicitly specify the meeting does not
constitute a plea discussion, and because the record establishes no factual basis for
considering the free talk a plea negotiation, Robles’s arguments regarding Federal
Rule of Evidence 410 are unavailing.

                                         -3-
