                                                                           FILED
                           NOT FOR PUBLICATION                             OCT 08 2014

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-50008

              Plaintiff - Appellee,              D.C. No. 2:12-cr-00936-PA-1

  v.
                                                 MEMORANDUM*
ALEJANDRO MELCHOR GUTIERREZ,
AKA Alejandro Gutierrez Melchor,

              Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Central District of California
                     Percy Anderson, District Judge, Presiding

                        Argued and Submitted May 15, 2014
                               Pasadena, California

Before: KOZINSKI, Chief Judge, and WARDLAW and FISHER, Circuit Judges.

       Alejandro Melchor Gutierrez appeals the district court’s imposition of a 77-

month term of incarceration and a three-year term of supervised release, following

his conviction for being a removed alien found in the United States, in violation of

8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Melchor contends that the Government breached the Rule 11(c)(1)(C) plea

agreement by implicitly arguing for a sentence greater than that which the parties

had agreed to recommend. We hold that there was no plain error because, even

assuming breach, Melchor has not shown that the alleged error affected his

substantial rights. See United States v. Gonzalez-Aguilar, 718 F.3d 1185, 1188-89

(9th Cir. 2013). Furthermore, the district court did not abuse its discretion in

rejecting the plea agreement, because it adequately set forth its reasons for

rejection in light of the specific circumstances of this case. See United States v.

Harris, 679 F.3d 1179, 1182 (9th Cir. 2012).

      Melchor also challenges the procedural and substantive reasonableness of

his term of imprisonment. Melchor’s procedural challenge fails under the plain

error standard because there is no reasonable probability that he would have

received a different sentence absent the district court’s alleged errors. See United

States v. Dallman, 533 F.3d 755, 762 (9th Cir. 2008). In addition, considering the

totality of the circumstances, including Melchor’s criminal history and prior

deportations, the within-Guidelines sentence is substantively reasonable. See

United States v. Gutierrez-Sanchez, 587 F.3d 904, 908 (9th Cir. 2009).




                                           2
      The district court did not plainly err by imposing a three-year term of

supervised released. See United States v. Valdavinos-Torres, 704 F.3d 679, 692-93

(9th Cir. 2012).

      AFFIRMED.




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