                                                                              FILED
                            NOT FOR PUBLICATION                                JAN 03 2014

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



                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                          No. 12-10259

              Plaintiff - Appellee,                D.C. No. 4:10-cr-00859-FRZ-BPV-1

  v.
                                                   MEMORANDUM*
OSCAR FERNANDO MONROY-
REYES,

              Defendant - Appellant.


                     Appeal from the United States District Court
                              for the District of Arizona
                   Frank R. Zapata, Senior District Judge, Presiding

                       Argued and Submitted November 4, 2013
                              San Francisco, California

Before: KLEINFELD, THOMAS, and RAWLINSON, Circuit Judges.

       Appellant Oscar Fernando Monroy-Reyes (Monroy-Reyes) challenges the

district court’s sua sponte decision to vacate his first guilty plea pursuant to a plea

agreement, and to sentence him to 156 months’ imprisonment after a second guilty

plea, without a plea agreement.


       *     This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       The district court vacated the initial guilty plea to correct an error in the plea

agreement that referenced a count that was not included in the charges against

Monroy-Reyes, as alleged in the indictment. Monroy-Reyes now argues that the

district court’s action violated his right to be free from double jeopardy.

       Because the double jeopardy claim is raised for the first time on appeal, we

review for plain error. See United States v. Teague, 722 F.3d 1187, 1190 (9th Cir.

2013). Plain error that warrants relief is (1) error, (2) that is plain, (3) that “affected

substantial rights,” and (4) that “seriously affected the fairness, integrity, or public

reputation of judicial proceedings.” Id. (citation omitted).

       Regardless of how, had an objection been made, we might apply United States

v. Patterson, 381 F.3d 859 (9th Cir. 2004) and United States v. Valenzuela-Arisqueta,

724 F.3d 1290 (9th Cir. 2013), we need not perform that task to resolve this appeal.

Under plain error review, the district court’s action did not “seriously affect[] the

fairness, integrity, or public reputation” of the plea proceedings. Teague, 722 F.3d at

1190. Like the defendant in Valenzuela-Arisqueta, Monroy-Reyes “continued to

have the options of proceeding to trial, pleading guilty, or seeking to negotiate

another plea agreement. . . . ” 724 F.3d at 1296 (footnote reference omitted).

       As noted above, Monroy-Reyes opted to plead guilty a second time, to the

correct charge. Correction of the erroneous plea actually bolstered the integrity of the


                                              2
proceedings, thereby foreclosing any viable claim of plain error. See Perry v. Brown,

667 F.3d 1078, 1087 (9th Cir. 2012) (emphasizing “the importance of preserving the

integrity of the judicial system”).



      AFFIRMED.




                                          3
