                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA ,               No. 12-50048
                Plaintiff-Appellee,
                                           D.C. No.
                v.                      2:11-cr-00789-
                                            GHK-1
UBALDO GONZALEZ-AGUILAR, AKA
Roberto Sanchez Aguilar, AKA
Arturo Diaz, AKA Arturo Cruz              OPINION
Garcia, AKA Waldo Gonzalez, AKA
Wbaldo Gonzalez, AKA Jorge
Padilla Rodriguez,
               Defendant-Appellant.


     Appeal from the United States District Court
         for the Central District of California
    George H. King, Chief District Judge, Presiding

                Argued and Submitted
         April 11, 2013—Pasadena, California

                 Filed June 13, 2013

    Before: Marsha S. Berzon, Richard C. Tallman,
       and Milan D. Smith, Jr., Circuit Judges.

              Opinion by Judge Tallman
2          UNITED STATES V . GONZALEZ-AGUILAR

                           SUMMARY*


                           Criminal Law

     The panel affirmed a sentence in a case in which the
defendant claimed that the government breached its promise
in the plea agreement to recommend a sentence at the low end
of the applicable Sentencing Guidelines range by arguing in
its sentencing memorandum that the defendant was a
recidivist with an extensive criminal history.

    The panel did not reach whether the arguments contained
in the government’s sentencing memorandum constituted a
breach of the plea agreement because, even if a breach
occurred, the defendant did not establish that his alleged
breach amounted to plain error.


                            COUNSEL

Matthew B. Larsen (argued), Deputy Federal Public
Defender; Sean K. Kennedy, Federal Public Defender, Los
Angeles, California, for Defendant-Appellant.

Michael Dore (argued) and Robert E. Dugdale, Assistant
United States Attorneys; André Birotte, Jr., United States
Attorney, Los Angeles, California, for Plaintiff-Appellee.




  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
          UNITED STATES V . GONZALEZ-AGUILAR                3

                         OPINION

TALLMAN, Circuit Judge:

    Ubaldo Gonzalez-Aguilar pled guilty to one count of
being a previously deported alien found in the United States,
in violation of 8 U.S.C. § 1326, and was sentenced to 57
months of imprisonment. On appeal, Gonzalez-Aguilar
claims that the government implicitly breached its plea
agreement by arguing in its sentencing memorandum that
Gonzalez-Aguilar was a recidivist with an extensive criminal
history. Gonzalez-Aguilar contends that, in making this
argument, the government breached its promise to
recommend a sentence at the low end of the applicable
Sentencing Guidelines range. We have jurisdiction pursuant
to 28 U.S.C. § 1291, and we affirm the sentence imposed by
the district court.

                     BACKGROUND

    On August 16, 2011, Ubaldo Gonzalez-Aguilar was
charged in a one count Information with being a previously
deported alien found in the United States, in violation of
8 U.S.C. § 1326. To resolve his criminal charges, Gonzalez-
Aguilar entered into a plea agreement under Federal Rule of
Criminal Procedure 11(c)(1)(C). Pursuant to the terms of the
agreement, the government stipulated to a 46-month sentence,
the low end of the applicable Guidelines range, and agreed
that it would “not seek, argue, or suggest in any way, either
orally or in writing, that any other specific offense
characteristics, adjustments, departures, or variances in
sentence . . . be imposed, or that the Court impose a sentence
other than what has been stipulated to by the parties.”
4         UNITED STATES V . GONZALEZ-AGUILAR

    After taking Gonzalez-Aguilar’s guilty plea, the district
court reserved approval of the plea agreement pending
preparation of a presentence report so the court could make
its own determination on whether to accept the plea
agreement and stipulated sentence. In the Initial Presentence
Report, filed on October 31, 2011, the United States
Probation Office recounted Gonzalez-Aguilar’s extensive
record of prior offenses and determined that Criminal History
Category V applied. The Probation Office calculated
Gonzalez-Aguilar’s resulting Guidelines range at 46 to 57
months of imprisonment.

    On November 3, 2011, the government filed a sentencing
memorandum, in which it evaluated Gonzalez-Aguilar’s prior
convictions in light of the sentencing factors articulated in
18 U.S.C. § 3553(a) and, as promised, advocated for a 46-
month prison sentence followed by a three-year term of
supervised release. In its memorandum, the government
stated that Gonzalez-Aguilar had “14 other criminal
convictions . . . for selling drugs or possessing drugs with the
intent to distribute, and crimes involving weapons,” and
argued that he “continues to flout the law and shows no signs
of stopping.”

    After considering the Initial Presentence Report and the
sentencing positions filed by both parties, the district court
declined to accept the plea agreement. The district judge
concluded that a term of imprisonment for “46 months will be
inadequate” and stated that he intended “to impose a sentence
that is more severe than that.” The court continued
sentencing proceedings in order to permit Gonzalez-Aguilar
to decide whether “he want[ed] to persist in the guilty plea, in
which case . . . [the judge warned that] the sentence will be
less favorable than that called for by the 11(c)(1)(C)
          UNITED STATES V . GONZALEZ-AGUILAR                   5

agreement.” On January 30, 2012, Gonzalez-Aguilar
declined to withdraw his guilty plea and proceeded to
sentencing. The district court imposed a sentence of 57
months of imprisonment and three years of supervised
release. Gonzalez-Aguilar immediately filed this appeal.

                        DISCUSSION

     “A defendant’s claim that the government breached [the
terms of a] plea agreement is generally reviewed de novo.”
United States v. Whitney, 673 F.3d 965, 970 (9th Cir. 2012).
However, Gonzalez-Aguilar’s counsel forfeited his claim by
failing to timely object to the alleged breach during district
court proceedings. Accordingly, we are limited to plain error
review on appeal. See United States v. Cannel, 517 F.3d
1172, 1175–76 (9th Cir. 2008). “Relief for plain error is
[only] available if there has been (1) error; (2) that was plain;
(3) that affected substantial rights; and (4) that seriously
affected the fairness, integrity, or public reputation of the
judicial proceedings.” Id. at 1176.

    Gonzalez-Aguilar claims that the government implicitly
breached the plea agreement by describing his prior
convictions and including inflammatory language in its
sentencing memorandum. Gonzalez-Aguilar contends that
this conduct constituted a breach because the government’s
arguments “serve[d] no purpose but ‘to influence the court to
give a higher sentence.’” Whitney, 673 F.3d at 971 (quoting
United States v. Johnson, 187 F.3d 1129, 1135 (9th Cir.
1999)). We need not decide whether the arguments contained
in the government’s sentencing memorandum constituted a
breach of the plea agreement because, even if a breach
occurred, Gonzalez-Aguilar has not established that this
alleged breach amounted to plain error.
6         UNITED STATES V . GONZALEZ-AGUILAR

    Specifically, Gonzalez-Aguilar cannot demonstrate that
the alleged breach impacted his substantial rights by
“affect[ing] the outcome of the district court proceedings.”
Puckett v. United States, 556 U.S. 129, 135 (2009) (quoting
United States v. Olano, 507 U.S. 725, 734 (1993)).
Gonzalez-Aguilar argues that if the government had
presented a united front with the defense in its sentencing
memorandum then “it is probable” that the court would have
accepted the plea agreement, but this speculative assertion is
not supported by the record. See Whitney, 673 F.3d at 973.

     The record establishes that the district court conducted its
own independent evaluation of the propriety of the stipulated
sentence. In doing so, the court was deeply influenced by the
Initial and Revised Presentence Reports, relied extensively on
the Reports’ description of Gonzalez-Aguilar’s criminal past,
and would not have lightly disregarded the facts contained in
the Reports. The district court cited its reasons for imposing
a lengthier sentence based on the criminal history discussion
contained in the Presentence Reports. During sentencing
proceedings, the court referenced each of Gonzalez-Aguilar’s
fifteen offenses in the same chronological order and
according to the descriptions of his criminal conduct listed in
the Initial and Revised Presentence Reports. In contrast, the
government’s sentencing memorandum only referenced six
of Gonzalez-Aguilar’s fifteen prior offenses, grouped them
according to offense category and not chronologically, and
provided only general or partial descriptions of the charged
crimes.

    Gonzalez-Aguilar notes the similarities between the
district court’s reasons for imposing a 57-month sentence,
referencing his “unbroken string of violations of law,” and the
government’s description in its sentencing memorandum of
          UNITED STATES V . GONZALEZ-AGUILAR                   7

Gonzalez-Aguilar’s “extensive string of crimes.” The mere
usage of the word “string” is insufficient proof that the
government’s sentencing memorandum persuaded the court
to reject the plea agreement or impose a harsher sentence than
the agreed upon term. Moreover, this argument ignores the
impact of Gonzalez-Aguilar’s extensive criminal record on an
objective reader and the judge’s obligation to fashion an
appropriate sentence for a recidivist offender like Gonzalez-
Aguilar. 18 U.S.C. § 3553(a). The role of the court in
evaluating the propriety of an 11(c)(1)(C) plea agreement is
an independent one.

    Furthermore, Gonzalez-Aguilar cannot claim that the
district court would not have received the information
contained in the government’s sentencing memorandum if not
for the prosecutor’s alleged misconduct. The information
contained in the government’s sentencing memorandum
regarding Gonzalez-Aguilar’s prior criminal convictions was
already conveyed to the district court, in far greater detail, in
the Initial and Revised Presentence Reports. Five pages of
the Initial Presentence Report, and seven pages of the Revised
Presentence Report, were devoted to describing Gonzalez-
Aguilar’s extensive criminal history, listing fifteen separate
offenses. The district court was not required to turn a blind
eye to the reality of a long criminal history in deciding
whether to accept or reject the stipulated sentence the parties
urged upon the court.

    The Presentence Reports and the government’s sentencing
memorandum contain similar rhetoric, which Gonzalez-
Aguilar claims is objectionable. Gonzalez-Aguilar complains
that the government, in its sentencing memorandum,
referenced his “extensive criminal history,” described his
“many past sentences, terms of probation, and five
8           UNITED STATES V . GONZALEZ-AGUILAR

deportations,” and concluded that he “continues to flout the
law and shows no signs of stopping.” However, the
Probation Officer included nearly identical language in the
Initial and Revised Presentence Reports, detailing Gonzalez-
Aguilar’s “more than two decades of criminal conduct,” and
concluding that “[b]ased on [Gonzalez-Aguilar’s] . . . prior
criminal convictions and arrest history, as well as his multiple
removals from the United States, it is clear that he lacks
respect for the law in the United States.” The Initial
Presentence Report was drafted and provided to the court
before the parties filed their sentencing memoranda.

    As a result, Gonzalez-Aguilar has not convinced us that,
absent this reference in the government’s sentencing
memorandum, “it is probable that” the court would have
accepted the plea agreement and imposed a more lenient
sentence. Whitney, 673 F.3d at 973.1 Instead, Gonzalez-

 1
   These facts are distinguishable from those present in Whitney, 673 F.3d
965. First, the conduct at issue in Whitney was far more egregious than
the conduct at issue in the present case. In Whitney, 673 F.3d at 969, the
prosecutor admitted during sentencing proceedings that she was violating
the plea agreement by disclosing information obtained in confidence
during a proffer from the defendant. Only after identifying this initial
breach did we also conclude the prosecutor breached the plea agreement
and impacted the defendant’s substantial rights when, during sentencing
proceedings, she argued “that [the defendant] was a ‘good thief,’ and
pointed to past offenses already included in the record.” Id. at 971.

     In the present case, the prosecutor’s alleged breach was singular, and
was made in a written submission filed more than a month before the
district court declined to accept the plea agreement, and almost three
months before the district court sentenced Gonzalez-Aguilar. The
prosecutor was practically silent at Gonzalez-Aguilar’s sentencing
hearing, and made no statements to the judge regarding Gonzalez-
Aguilar’s criminal history. Additionally, in Whitney, there was no
comparable record of reliance by the district court judge on the
            UNITED STATES V . GONZALEZ-AGUILAR                         9

Aguilar offers only speculation to support his assertion that,
absent the government’s breach, the district court would have
disregarded the information contained in the Presentence
Reports, accepted the plea agreement, and imposed the agreed
upon sentence of only 46 months. We decline to adopt
Gonzalez-Aguilar’s argument that, under Whitney, 673 F.3d
at 973–74, a defendant’s substantial rights are affected any
time: (1) the government breaches a plea agreement; and (2)
the lower sentence contained in the plea agreement “was not
foreclosed” to the defendant. According to this logic,
prejudice must be assumed whenever a breach is proven and
“it is possible” that the defendant could have obtained the
agreed upon sentence.

    Mere “possibility” is insufficient to establish prejudice.
Rather, as the Supreme Court has clearly stated, to prevail on
plain error review, a defendant must show that the alleged
error was “‘prejudicial,’ which means that there is a
reasonable probability that the error affected the outcome”—
here the longer sentence imposed. United States v. Marcus,
560 U.S. 258, 130 S. Ct. 2159, 2164 (2010) (emphasis
added). The Court clarified that it is not sufficient for the
defendant to state that there is a “possibility, however
remote” that the defendant could have obtained a better
outcome or sentence absent the error. Id. at 2163 (internal
quotation marks omitted). Instead, where a breach of the plea


presentence report. There was also no evidence that the judge was
influenced by anything other than the prosecutor’s improvident statements
during sentencing proceedings to impose a harsher sentence than the one
provided in the plea agreement. Here, it is clear that the district court
judge carefully reviewed the information contained in the Presentence
Reports, and relied upon this information when declining to accept the
plea agreement and later deciding to sentence Gonzalez-Aguilar to a 57-
month term of imprisonment.
10        UNITED STATES V . GONZALEZ-AGUILAR

agreement is alleged, the defendant must prove that it is
“reasonabl[y] probable” that he or she would have received
a more lenient sentence if the government had not committed
the breach, not just merely that it is “possib[le].” Id. at
2163–64. As we held in Whitney, “[t]o conclude that a
defendant’s substantial rights were affected, there must be a
reasonable probability that the error affected the outcome of
the [sentencing].” Whitney, 673 F.3d at 972 (internal
quotation marks omitted) (second alteration in original).

    “It is the defendant rather than the Government who bears
the burden of persuasion with respect to prejudice[, and] . . .
a court of appeals cannot correct the forfeited error unless the
defendant shows that the error was prejudicial.” Olano,
507 U.S. at 734; see also United States v. Lorenzo, 995 F.2d
1448, 1458 n.4 (9th Cir. 1993) (“[I]f plain error applies, it
appears that the appellants, rather than the government,
[must] pay the price for the inadequacy of the record.”).
Absent proof of prejudice, Gonzalez-Aguilar cannot establish
plain error and he is not entitled to relief.

     AFFIRMED.
