                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            MAR 20 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   16-10038

              Plaintiff-Appellee,                D.C. No.
                                                 3:15-cr-08184-DGC-1
 v.

JESUS BENIGNO LOPEZ-ZATARAIN,                    MEMORANDUM*
AKA Jesus Benigno Lopez Zatarain, AKA
Jesus Beningo Lopez Zatarain, AKA Jesus
B. Lopez-Zatarain,

              Defendant-Appellant.


                   Appeal from the United States District Court
                            for the District of Arizona
                   David G. Campbell, District Judge, Presiding

                            Submitted March 15, 2017**
                             San Francisco, California

Before: FERNANDEZ, MURGUIA, and WATFORD, Circuit Judges.

      On September 29, 2015, Jesus Benigno Lopez-Zatarain entered into a

modified “fast-track” plea agreement with a reduced sentence of 18–24 months. On

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
December 4, 2015, Lopez-Zatarain filed a motion to withdraw from the plea

agreement in order to argue for a variance below 18 months, which would not have

been possible under the plea agreement. The district court granted the motion.

      Without the benefit of the reduced sentence in the plea agreement, Lopez-

Zatarain faced a Guidleines range of 27–33 months. The district court varied

downward and imposed a sentence of 21 months. At the sentencing hearing, the

judge stated, “It seems a bit unfair to give you a higher sentence for having

withdrawn from the plea agreement, but you did withdraw and now the

government is faced with the prospect of a possible appeal that they didn’t have

under the prior plea agreement.” Lopez-Zatarain did not object before the district

court, but on appeal he argues that the court vindictively increased his sentence.

      We review the constitutionality of a sentence de novo. United States v. Leon

H., 365 F.3d 750, 752 (9th Cir. 2004). “When a defendant fails to raise a legal

objection at trial but raises the objection for the first time on appeal, we review

only for plain error.” United States v. Alferahin, 433 F.3d 1148, 1154 (9th Cir.

2006). We affirm.

      The presumption of vindictiveness does not apply where a prosecutor

increases charges against a defendant who rejects a plea deal. Bordenkircher v.

Hayes, 434 U.S. 357, 365 (1978). The Supreme Court explained that the


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procedural costs imposed by a defendant who rejects a plea and puts the

government to its burden of proof at trial justify increased punishment without

triggering a presumption of vindictiveness. United States v. Goodwin, 457 U.S.

368, 381-82 (1982).

      Here, Lopez-Zatarain’s decision to withdraw from the plea agreement in

order to preserve his right to appeal is analogous to a defendant who rejects a plea

agreement in order to preserve his right to trial. In both situations, the additional

burdens imposed by the defendant’s decision justify an increased sentence without

triggering a presumption of vindictiveness. See id.

      Moreover, there is no actual evidence that the district court was vindictive

here. This case does not present a situation where Lopez-Zatarain appealed,

succeeded in gaining a reversal, and suffered a harsher sentence on remand.

Instead, the district court imposed a sentence six months below the Guidelines

range the first time it sentenced Lopez-Zatarain.

      Finally, Lopez-Zatarain’s argument cannot withstand plain-error review.

Even assuming the court erred by imposing the 21-month sentence, the error was

not plain. Lopez-Zatarain has not presented any authority holding that a higher

sentence after a withdrawn guilty plea triggers the presumption of vindictiveness.

United States v. Hayat, 710 F.3d 875, 908 (9th Cir. 2013) (holding that plain-error


                                            3
review “requires the court to find that the error was plain under existing law, rather

than subject to reasonable dispute”).

      AFFIRMED.




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