United States v. Jose Deleon-Juarez ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 22 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 21-50243
Plaintiff-Appellee, D.C. No.
3:20-cr-02034-LAB-1
v.
JOSE ANTONIO DELEON-JUAREZ, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted February 14, 2023**
Pasadena, California
Before: O’SCANNLAIN, HURWITZ, and BADE, Circuit Judges.
Jose Deleon-Juarez challenges the 70-month sentence imposed following his
guilty plea for being a removed alien found in the United States, in violation of 8
U.S.C. § 1326. Because the facts are known to the parties, we repeat them only as
*
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).
necessary to explain our decision. We have jurisdiction under 28 U.S.C. § 1291, and
we affirm.
Jose Deleon-Juarez claims for the first time on appeal that the government
breached the plea agreement. Deleon-Juarez and the government dispute whether
Deleon-Juarez waived his right to challenge the government’s alleged breach on
appeal, and whether the government’s conduct constituted a breach.
Even assuming no waiver, Deleon-Juarez has not shown that any alleged
breach amounted to plain error. See United States v. Gonzalez-Aguilar, 718 F.3d
1185, 1187 (9th Cir. 2013). “Relief for plain error is 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.” United States v. Cannel, 517 F.3d 1172, 1176 (9th Cir. 2008). To
conclude that a defendant’s substantial rights were affected, “there must be a
reasonable probability that the error affected the outcome of the sentencing.” United
States v. Whitney, 673 F.3d 965, 972 (9th Cir. 2012) (simplified).
At sentencing, the district court focused on Deleon-Juarez’s prior convictions
for immigration offenses and his failure to be deterred by previous sentences. The
district court expressly rejected the 51-month sentence requested by the government
as insufficient to deter Deleon-Juarez. Under these circumstances, there is no
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reasonable probability that the alleged breach affected the court’s sentencing
determination. See Gonzalez-Aguilar, 718 F.3d at 1188–89.
The judgment of the district court is AFFIRMED.
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