United States of America v. DiANGELO JOHNSON

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DiANGELO JOHNSON,
Defendant - Appellant.
No. 12-50341
D.C. No. 3:12-cr-00623-LAB
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted December 17, 2013**
Before: GOODWIN, WALLACE, and GRABER, Circuit Judges.
DiAngelo Johnson appeals from the district court’s judgment and challenges
the 41-month sentence imposed following his guilty-plea conviction for being a
felon in possession of a firearm and ammunition, in violation of 18 U.S.C.
FILED
DEC 30 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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§§ 922(g)(1) and 924(a)(2). We have jurisdiction under 28 U.S.C. § 1291, and we
affirm.
Johnson contends that the government breached the plea agreement when it
argued against a Guidelines reduction for acceptance of responsibility. We review
for plain error, see United States v. Whitney, 673 F.3d 965, 973 (9th Cir. 2012),
and find none. The record shows that under the terms of the plea agreement, the
government was not required to recommend a reduction if Johnson engaged in
criminal conduct, and he does not dispute that he engaged in such conduct. See
United States v. Cannel, 517 F.3d 1172, 1176-77 (9th Cir. 2008) (“Because the
government was obligated to move for the reduction only if [the defendant] met the
specified conditions, and because there is no suggestion that it acted based on
unconstitutional or arbitrary motives, the government did not breach the plea
agreement by not recommending an adjustment for acceptance of responsibility.”).
Moreover, Johnson has not shown a reasonable probability that he would have
received a different sentence absent any alleged breach. See United States v.
Gonzalez-Aguilar, 718 F.3d 1185, 1189 (9th Cir. 2013).
AFFIRMED.
12-50341 2

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