                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       DEC 12 2016
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT



 UNITED STATES OF AMERICA,                       No.    15-50508

                  Plaintiff-Appellee,            D.C. No.
                                                 3:15-cr-01751-DMS-1
   v.

 JORGE NUNEZ-DUENAS,                             MEMORANDUM*

                  Defendant-Appellant.

                    Appeal from the United States District Court
                       for the Southern District of California
                     Dana M. Sabraw, District Judge, Presiding

                     Argued and Submitted November 7, 2016
                              Pasadena, California

Before: BERZON, CHRISTEN, and NGUYEN, Circuit Judges.

        Jorge Nunez-Duenas appeals his sentence of 48-months imprisonment for

illegal reentry after removal in violation of 8 U.S.C. § 1326. Nunez-Duenas argues

that the government acted in bad faith and breached the plea agreement by

recommending a Criminal History Category of VI based on a date of prior

imprisonment listed in the Presentence Investigation Report (“PSR”). The record
        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
reflects that this date was obtained by a probation officer from searches of certain

state and federal databases and confirmed by the probation officer’s telephone

conversation with a California Department of Corrections representative. We have

jurisdiction under 28 U.S.C. § 1291. United States v. Jacobo Castillo, 496 F.3d

947, 957 (9th Cir. 2007) (en banc).1 We enforce Nunez-Duenas’ appeal waiver

and dismiss his appeal.

       1. Nunez-Duenas contends that the government acted in bad faith in

arguing for a Criminal History Category of VI because there was not sufficient

evidence of the date of one imprisonment for revocation of parole, but he does not

challenge the accuracy of that date. We have rejected a parallel argument in a

similar context, holding that a district court does not abuse its discretion in

sentencing based on prior convictions in a PSR derived from the same databases

used here, so long as the defendant neither disputes the factual accuracy of the

information nor identifies indicia of unreliability. See United States v. Romero-

Rendon, 220 F.3d 1159, 1162–63 (9th Cir. 2000); United States v. Marin-Cuevas,

147 F.3d 889, 894–895 & n.6 (9th Cir. 1998). Nunez-Duenas offers no reason why

1
  We need not resolve the parties’ dispute over whether the applicable standard of
review is clear error or de novo because the result is the same under either
standard. See United States v. Quach, 302 F.3d 1096, 1100 (9th Cir. 2002).

                                           2
this precedent cannot apply where, as here, the plea agreement gave the

government discretion to recommend a sentence “as calculated by the Government

at the time of sentencing” and made clear that there was “no agreement as to [the]

defendant’s Criminal History Category.”

          2. Nunez-Duenas argues that the date in the PSR was unreliable because

it was absent from a rap sheet summary attached to the criminal complaint with

which he was charged. This argument is unpersuasive because the rap sheet

summary does not purport to be a complete list of Nunez-Duenas’ dates of

incarceration.

          3. Nunez-Duenas notes that the government stated, after losing its

request for a Criminal History Category of VI, that the district court “properly

calculated” a Criminal History Category of V. Nunez-Duenas cites no authority

suggesting that this stray remark, made in the context of an alternative argument

for a longer sentence, signifies anything more than the government’s submission to

the district court’s decision.

          4. Because we hold that the government did not act in bad faith or

breach Nunez-Duenas’s plea agreement, we enforce the appellate waiver in Nunez-

Duenas’ plea agreement and dismiss his appeal. See United States v. Hernandez-

                                          3
Castro, 814 F.3d 1044, 1046 (9th Cir. 2016).2

        DISMISSED.




2
    We DENY AS MOOT the government’s Motion to Supplement the Record.

                                        4
