                                                                            FILED
                           NOT FOR PUBLICATION                              DEC 22 2016

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        Nos. 15-50484
                                                      15-50485
              Plaintiff-Appellee,
                                                 D.C. No. 3:15-cr-01782-DMS
 v.                                                       3:15-cr-07114-DMS

NOLBERTO ORTEGA-AGUILAR,
                                                 MEMORANDUM*
              Defendant-Appellant.


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

                          Submitted December 14, 2016**

Before:      WALLACE, LEAVY, and FISHER, Circuit Judges.

      In these consolidated appeals, Nolberto Ortega-Aguilar appeals his guilty-

plea conviction and 46-month sentence for attempted reentry of a removed alien, in

violation of 8 U.S.C. § 1326, and the 21-month consecutive sentence imposed



      *
             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).
upon revocation of supervised release. We have jurisdiction under 28 U.S.C.

§ 1291, and we affirm.

      Ortega-Aguilar contends that the magistrate judge erred under Federal Rule

of Criminal Procedure 11(c)(3)(B) by failing to admonish him that he did not have

the right to withdraw his guilty plea if the district court declined to follow the

parties’ joint recommendation for a fast-track departure under U.S.S.G. § 5K3.1.

We review for plain error, see United States v. Dominguez Benitez, 542 U.S. 74, 76

(2004), and find none. In light of the record and the plea agreement,

Ortega-Aguilar has not demonstrated a reasonable probability that, but for the

alleged error, he would not have entered a guilty plea. See id. at 83, 85.

      Ortega-Aguilar next contends that the district court erred by failing to give

him an opportunity to withdraw his guilty plea after denying the parties’ joint

recommendation for a fast-track departure. Contrary to Ortega-Aguilar’s

contention, the plain language of his plea agreement reflects that it was made

pursuant to Rule 11(c)(1)(B). See United States v. Franco-Lopez, 312 F.3d 984,

989 (9th Cir. 2002) (courts enforce literal terms of plea agreement). Accordingly,

the district court was not required to give him an opportunity to withdraw his

guilty plea. See Fed. R. Crim. P. 11(c)(5).




                                           2                           15-50484 & 15-50485
      Finally, Ortega-Aguilar argues that his aggregate sentence is substantively

unreasonable in light of the mitigating factors and the district court’s denial of the

fast-track departure. The district court did not abuse its discretion in imposing

Ortega-Aguilar’s sentence. See Gall v. United States, 552 U.S. 38, 51 (2007). The

sentence is substantively reasonable in light of the 18 U.S.C. § 3553(a) factors and

the totality of the circumstances, including Ortega-Aguilar’s extensive criminal

history. See Gall, 552 U.S. at 51; United States v. Rosales-Gonzales, 801 F.3d

1177, 1182-85 (9th Cir. 2015).

      AFFIRMED.




                                           3                          15-50484 & 15-50485
