United States v. Nolberto Ortega-Aguilar ( 2016 )

FILED
NOT FOR PUBLICATION DEC 22 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, Nos. 15-50484
15-50485
Plaintiff-Appellee,
D.C. No. 3:15-cr-01782-DMS
v. 3:15-cr-07114-DMS
NOLBERTO ORTEGA-AGUILAR,
MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Dana M. Sabraw, District Judge, Presiding
Submitted December 14, 2016**
Before: WALLACE, LEAVY, and FISHER, Circuit Judges.
In these consolidated appeals, Nolberto Ortega-Aguilar appeals his guilty-
plea conviction and 46-month sentence for attempted reentry of a removed alien, in
violation of 8 U.S.C. § 1326, and the 21-month consecutive sentence imposed
*
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).
upon revocation of supervised release. We have jurisdiction under 28 U.S.C.
§ 1291, and we affirm.
Ortega-Aguilar contends that the magistrate judge erred under Federal Rule
of Criminal Procedure 11(c)(3)(B) by failing to admonish him that he did not have
the right to withdraw his guilty plea if the district court declined to follow the
parties’ joint recommendation for a fast-track departure under U.S.S.G. § 5K3.1.
We review for plain error, see United States v. Dominguez Benitez, 542 U.S. 74, 76
(2004), and find none. In light of the record and the plea agreement,
Ortega-Aguilar has not demonstrated a reasonable probability that, but for the
alleged error, he would not have entered a guilty plea. See id. at 83, 85.
Ortega-Aguilar next contends that the district court erred by failing to give
him an opportunity to withdraw his guilty plea after denying the parties’ joint
recommendation for a fast-track departure. Contrary to Ortega-Aguilar’s
contention, the plain language of his plea agreement reflects that it was made
pursuant to Rule 11(c)(1)(B). See United States v. Franco-Lopez, 312 F.3d 984,
989 (9th Cir. 2002) (courts enforce literal terms of plea agreement). Accordingly,
the district court was not required to give him an opportunity to withdraw his
guilty plea. See Fed. R. Crim. P. 11(c)(5).
2 15-50484 & 15-50485
Finally, Ortega-Aguilar argues that his aggregate sentence is substantively
unreasonable in light of the mitigating factors and the district court’s denial of the
fast-track departure. The district court did not abuse its discretion in imposing
Ortega-Aguilar’s sentence. See Gall v. United States, 552 U.S. 38, 51 (2007). The
sentence is substantively reasonable in light of the 18 U.S.C. § 3553(a) factors and
the totality of the circumstances, including Ortega-Aguilar’s extensive criminal
history. See Gall, 552 U.S. at 51; United States v. Rosales-Gonzales, 801 F.3d
1177, 1182-85 (9th Cir. 2015).
AFFIRMED.
3 15-50484 & 15-50485