                                                                            FILED
                             NOT FOR PUBLICATION                             DEC 17 2009

                                                                        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. 09-50085

               Plaintiff - Appellee,             D.C. No. 3:08-cr-02589-LAB

   v.
                                                 MEMORANDUM *
 WILMER GIOVANY OLMEDO,

               Defendant - Appellant.



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

                           Submitted November 17, 2009 **


Before:        ALARCÓN, TROTT, and TASHIMA, Circuit Judges.

        Wilmer Giovany Olmedo appeals from the 30-month sentence imposed

following his guilty-plea conviction for transporting illegal aliens and aiding and



          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).

SZ/Research
abetting, in violation of 8 U.S.C. § 1324(a)(1)(A)(ii) and (v)(II). We have

jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

         The government contends that Olmedo waived his right to claim a breach of

the plea agreement. We need not rely on the waiver because the record reflects

that the government did not breach the agreement. See United States v. Johnson,

187 F.3d 1129, 1134-35 (9th Cir. 1999).

         Olmedo also contends that his sentence is unreasonable because the district

court applied both a 6-month upward variance based on his “integral role” in the

offense and a 2-level minor role reduction, pursuant to U.S.S.G. § 3B1.2(b). He

also contends that the variance renders his sentence unreasonable because the

district court relied on prior apprehensions that are not sufficiently supported by

the record. The record reflects that the appellant’s sentence is not unreasonable in

light of the totality of the circumstances. See United States v. Carty, 520 F.3d 984,

993 (9th Cir. 2008) (en banc). Moreover, the district court’s prior apprehension

findings, in regard to the upward variance, do not constitute reversible error upon

this record. See United States v. Romero-Rendon, 220 F.3d 1159, 1165 (9th Cir.

2000).

         AFFIRMED.




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