                                                                           FILED
                            NOT FOR PUBLICATION                             OCT 03 2013

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 12-10469

               Plaintiff - Appellee,             D.C. No. 2:12-cr-01204-SRB

  v.
                                                 MEMORANDUM *
LUIS FERNANDO GONZALES-
GARCIA,

               Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Arizona
                     Susan R. Bolton, District Judge, Presiding

                           Submitted September 24, 2013 **

Before:        RAWLINSON, N.R. SMITH, and CHRISTEN, Circuit Judges.

       Luis Fernando Gonzales-Garcia appeals from the district court’s judgment

and challenges the 60-month sentence imposed following his guilty-plea

conviction for reentry of a removed alien, in violation of 8 U.S.C. § 1326. We


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
have jurisdiction under 28 U.S.C. § 1291, and we affirm.

      Gonzales-Garcia contends that the government breached the plea agreement

by failing to move for a three-level reduction for acceptance of responsibility under

U.S.S.G. § 3E1.1. The government contends that the appeal is barred by a valid

appeal waiver. We review de novo whether a defendant has waived his right to

appeal. See United States v. Watson, 582 F.3d 974, 981 (9th Cir. 2009). In the

plea agreement, Gonzales-Garcia waived his right to appeal the judgment and

sentence as long as the “sentence is consistent with this agreement.” Neither the

plea agreement nor the magistrate judge at the change of plea hearing explained

what was meant by this provision. This ambiguity is construed against the

government, see United States v. Transfiguracion, 442 F.3d 1222, 1228 (9th Cir.

2006), and we hold that Gonzales-Garcia did not knowingly and intelligently

waive his right to appeal.

      We review for plain error whether the government breached the plea

agreement because Gonzales-Garcia did not raise the issue of breach in the district

court. See United States v. Manzo, 675 F.3d 1204, 1209 (9th Cir. 2012). Because

Gonzales-Garcia made inconsistent statements to the probation office regarding his

offense, he failed to make a “full and complete disclosure to the Probation Office”

as contemplated by the terms of the plea agreement. Thus, the government was not


                                          2                                   12-10469
obligated to move for the third point under the plea agreement.

      AFFIRMED.




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