                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        SEP 18 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    18-50073

                Plaintiff-Appellee,             D.C. No. 3:17-cr-00907-WQH

 v.
                                                MEMORANDUM*
HECTOR BENJAMIN OROZCO,

                Defendant-Appellant.

                   Appeal from the United States District Court
                     for the Southern District of California
                   William Q. Hayes, District Judge, Presiding

                          Submitted September 12, 2018**

Before:      LEAVY, HAWKINS, and TALLMAN, Circuit Judges.

      Hector Benjamin Orozco appeals from the district court’s judgment and

challenges the 34-month sentence imposed following his jury-trial conviction for

attempted reentry of a removed alien, 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 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).
      Orozco argues that the district court erred by referencing an incorrect

assertion contained in the presentence report (“PSR”) when ruling on his request

for an acceptance of responsibility adjustment under U.S.S.G. § 3E1.1. We review

for plain error. United States v. Christensen, 732 F.3d 1094, 1101 (9th Cir. 2013).

As the government concedes, the district court should not have referenced or relied

upon the retracted statement from the PSR. See United States v. Alvarado-

Martinez, 556 F.3d 732, 734-35 (9th Cir. 2009) (due process requires that

defendant be sentenced based on accurate information).

      Nevertheless, Orozco has not established plain error. The record

demonstrates that the district court relied on numerous, uncontested facts when

ruling on Orozco’s request for an acceptance of responsibility reduction, and the

record as a whole indicates that Orozco did not meet his burden of showing

entitlement to that reduction. See United States v. Rodriguez, 851 F.3d 931, 949

(9th Cir. 2017). Accordingly, there is no reasonable probability that Orozco would

have received a different sentence if the district court had not referenced the

erroneous statement from the PSR, and any error did not prejudice his substantial

rights. See Christensen, 732 F.3d at 1101-02.

      AFFIRMED.




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