                           NOT FOR PUBLICATION                           FILED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

UNITED STATES OF AMERICA,                       No. 17-50273

                Plaintiff-Appellee,             D.C. No. 3:17-cr-00883-LAB

 v.
                                                MEMORANDUM*
JULIO CESAR TORRES-MARTINEZ,

                Defendant-Appellant.

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

                             Submitted May 15, 2018**

Before:      SILVERMAN, BEA, and WATFORD, Circuit Judges.

      Julio Cesar Torres-Martinez appeals from the district court’s judgment and

challenges the 16-month sentence imposed following his guilty-plea conviction for

being a removed alien found in the United States, 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).
      For the first time on appeal, Torres-Martinez argues that the government

breached the terms of the parties’ plea agreement by failing to recommend a

sentence in the “middle-range” of the Guidelines. The government argues that

Torres-Martinez waived this claim by failing to raise it in the district court. We

decline to decide whether Torres-Martinez waived his breach claim because, even

if merely forfeited, Torres-Martinez cannot show plain error. See United States v.

Whitney, 673 F.3d 965, 970 (9th Cir. 2012). The government recommended a

sentence of ten months, which was in the “middle range” of the parties’ Guidelines

calculation, as Torres-Martinez’s sentencing memorandum implicitly

acknowledged. Moreover, even treating the ten month recommendation as a

breach, it did not affect Torres-Martinez’s substantial rights because the record

makes clear that there is no reasonable probability that the court would have

imposed a different sentence absent the breach. See United States v. Gonzalez-

Aguilar, 718 F.3d 1185, 1187 (9th Cir. 2013).

      Torres-Martinez next contends that the district court procedurally erred

when it denied the parties’ joint request for a two-level departure under U.S.S.G.

§ 5K1.3, and imposed a substantively unreasonable sentence. We do not review

the procedural correctness of a district court’s departure decision; rather, we

review the substantive reasonableness of the ultimate sentence under an abuse of

discretion standard. See United States v. Rosales-Gonzales, 801 F.3d 1177, 1180


                                          2                                       17-50273
(9th Cir. 2015). The court did not abuse its discretion. It properly considered

Torres-Martinez’s immigration history, including his three prior illegal reentry

offenses. See id. at 1184. The 16-month sentence is substantively reasonable in

light of the 18 U.S.C. § 3553(a) sentencing factors and the totality of the

circumstances. See Gall v. United States, 552 U.S. 38, 51 (2007).

      AFFRIMED.




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