                                                                           FILED
                            NOT FOR PUBLICATION                              DEC 30 2013

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



                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-50341

               Plaintiff - Appellee,             D.C. No. 3:12-cr-00623-LAB

  v.
                                                 MEMORANDUM*
DiANGELO JOHNSON,

               Defendant - Appellant.


                    Appeal from the United States District Court
                      for the Southern District of California
                     Larry A. Burns, District Judge, Presiding

                           Submitted December 17, 2013**

Before:        GOODWIN, WALLACE, and GRABER, Circuit Judges.

       DiAngelo Johnson appeals from the district court’s judgment and challenges

the 41-month sentence imposed following his guilty-plea conviction for being a

felon in possession of a firearm and ammunition, in violation of 18 U.S.C.



          *
             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).
§§ 922(g)(1) and 924(a)(2). We have jurisdiction under 28 U.S.C. § 1291, and we

affirm.

      Johnson contends that the government breached the plea agreement when it

argued against a Guidelines reduction for acceptance of responsibility. We review

for plain error, see United States v. Whitney, 673 F.3d 965, 973 (9th Cir. 2012),

and find none. The record shows that under the terms of the plea agreement, the

government was not required to recommend a reduction if Johnson engaged in

criminal conduct, and he does not dispute that he engaged in such conduct. See

United States v. Cannel, 517 F.3d 1172, 1176-77 (9th Cir. 2008) (“Because the

government was obligated to move for the reduction only if [the defendant] met the

specified conditions, and because there is no suggestion that it acted based on

unconstitutional or arbitrary motives, the government did not breach the plea

agreement by not recommending an adjustment for acceptance of responsibility.”).

Moreover, Johnson has not shown a reasonable probability that he would have

received a different sentence absent any alleged breach. See United States v.

Gonzalez-Aguilar, 718 F.3d 1185, 1189 (9th Cir. 2013).

      AFFIRMED.




                                          2                                     12-50341
