                             NOT FOR PUBLICATION                          FILED
                      UNITED STATES COURT OF APPEALS                       FEB 29 2016
                                                                       MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                             FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                         No. 15-10167

              Plaintiff - Appellee,                D.C. No. 4:14-cr-01887-JAS

    v.
                                                   MEMORANDUM*
 RAFAEL ESTRADA-TRUJILLO, a.k.a.
 Rafael Estrada,

              Defendant - Appellant.

                     Appeal from the United States District Court
                              for the District of Arizona
                      James A. Soto, District Judge, Presiding

                            Submitted February 24, 2016**

Before:        LEAVY, FERNANDEZ, and RAWLINSON, Circuit Judges.

         Rafael Estrada-Trujillo appeals from the district court’s judgment and

challenges the 21-month sentence and three year term of supervised release

imposed following his guilty-plea conviction for reentry of a removed alien, 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. We have jurisdiction under 28 U.S.C. § 1291, and

we affirm.

      Estrada-Trujillo contends that the government breached the parties’ plea

agreement when it asked the district court to reject the agreement and argued for an

upward variance during sentencing. Because Estrada-Trujillo failed to object on

this ground below, we review for plain error. See Puckett v. United States, 556

U.S. 129, 143 (2009). There is no plain error because the government asked the

court to reject the agreement only after Estrada-Trujillo stated that it was

unenforceable. Moreover, even if the agreement were enforceable, it did not

preclude the government from requesting a variance. Finally, Estrada-Trujillo

received a sentence within the lowest range stipulated in the plea agreement for his

criminal history category. See id. at 141-42 (defendant cannot show prejudice

where he received the benefits of his agreement despite alleged breach).

      Estrada-Trujillo also contends that the district court procedurally erred when

it allegedly took judicial notice of the Mexican health care system during

sentencing, and that his sentence is substantively unreasonable. We disagree. It

was not improper for the court to state, in response to Estrada-Trujillo’s

explanation for why he returned to the United States, that it believed that Estrada-

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Trujillo could get surgery in Mexico even if he could not afford it. In any event,

the record reflects that the court considered all of Estrada-Trujillo’s mitigating

factors, including his medical condition, and properly imposed sentence on the

basis of the 18 U.S.C. § 3553(a) sentencing factors. See United States v. Carty,

520 F.3d 984, 991 (9th Cir. 2008) (en banc). Moreover, the within-Guidelines

custodial sentence and three-year term of supervised release are substantively

reasonable in light of the section 3553(a) sentencing factors and the totality of the

circumstances, particularly the failure of prior lengthier sentences to deter him.

See Gall, 552 U.S. at 51.

      AFFIRMED.




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