                                                                            FILED
                             NOT FOR PUBLICATION                             MAR 05 2010

                                                                         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. 09-50135

               Plaintiff - Appellee,             D.C. No. 3:08-CR-03125-BEN

   v.
                                                 MEMORANDUM *
 JAIME CORVAIA-HERNANDEZ,

               Defendant - Appellant.



                     Appeal from the United States District Court
                        for the Southern District of California
                      Roger T. Benitez, District Judge, Presiding

                            Submitted February 16, 2010 **

Before:        FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.

        Jaime Corvaia-Hernandez appeals from the 41-month sentence imposed

following his guilty-plea conviction for importation of cocaine, in violation of 21

U.S.C. §§ 952 and 960. We have jurisdiction pursuant to 28 U.S.C. § 1291, and

          *
             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).

EG/Research
we affirm.

       Corvaia-Hernandez contends that the government breached the parties’ plea

agreement by recommending a total offense level of 22 at sentencing, as opposed

to the total offense level of 17 he contends was required by the written plea

agreement.

       Because the base offense level, departures, and adjustments listed in the

written plea agreement did not add up to the listed total offense level, the written

plea agreement was ambiguous and we therefore look to extrinsic evidence. See

United States v. Clark, 218 F.3d 1092, 1095 (9th Cir. 2000) (“If . . . a term of a

plea agreement is not clear on its face, we look to the facts of the case to determine

what the parties reasonably understood to be the terms of the agreement.”) (citation

omitted). When considered in conjunction with the government’s letter to

Corvaia-Hernandez extending the plea offer and defense counsel’s admissions at

the sentencing hearing, it is clear that the terms of the agreement included the

specified base offense level, adjustments, and departures, with a total offense level

of 22. The district court therefore properly construed the plea agreement in

accordance with the extrinsic evidence, and there was no breach. See id. at 1096

(“Only if the extrinsic evidence regarding the parties’ intent fails to resolve the

term’s ambiguity must the court apply the rule construing ambiguous terms against


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the drafting party.”). Corvaia-Hernandez’s reliance on United States v. Partida-

Parra, 859 F.2d 629 (9th Cir. 1988), is misplaced. See id. at 634 (reversing district

court’s decision to set aside guilty plea pursuant to unambiguous information based

on defense of unilateral mistake).

       AFFIRMED.




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