United States of America v. Oscar Roberto Garcia- Labrada

This disposition is not appropriate for publication and is not precedent*
except as provided by Ninth Circuit Rule 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
OSCAR ROBERTO GARCIA-
LABRADA,
Defendant - Appellant.
No. 08-10549
D.C. No. CR-08-00229-PGR-1
MEMORANDUM *
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
OSCAR ROBERTO GARCIA-
LABRADA,
Defendant - Appellant.
No. 08-10550
D.C. No. CR-02-00731-PGR-1
Appeals from the United States District Court
for the District of Arizona
Paul G. Rosenblatt, District Judge, Presiding
Argued and Submitted December 7, 2009
FILED
DEC 14 2009
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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San Francisco, California
Before: TASHIMA, GRABER, and BYBEE, Circuit Judges.
Defendant Oscar Roberto Garcia-Labrada appeals the district court’s
imposition of a sentence of forty-three months’ imprisonment for reentering the
United States without legal authorization, in violation of 8 U.S.C. § 1326(a), and
fifteen months’ imprisonment for violating the terms of his supervised release. We
have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
1. Reviewing for plain error, see Puckett v. United States, 129 S. Ct. 1423,
1428 (2009), we hold that the government did not breach its agreement not to
oppose a two-level reduction for Defendant’s acceptance of responsibility. The
prosecutor’s statements at sentencing were entirely proper and were not
comparable to the conduct held to have violated the government’s agreement in
United States v. Johnson, 187 F.3d 1129, 1135 (9th Cir. 1999).
2. The district court erred when, during sentencing on the indicted charge, it
appeared to apply an upward departure pursuant to U.S.S.G. § 7b1.4, commentary
note 4. That departure guideline applies only to terms of imprisonment for
revocation of supervised release, not to convictions for violations of 8 U.S.C.
§ 1326(a). Because Defendant failed to object at sentencing to this aspect of the

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Defendant did object to the imposition of a departure on the basis that1
"departures have been superseded by variances based upon the statutory sentencing
scheme and that the Court can only grant variances instead of departures." The
district court properly declined to heed that objection. See United States v.
Vanderwerfhorst, 576 F.3d 929, 934-35 (9th Cir. 2009) (recognizing the
continuing vitality of both departures and variances).
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district court’s reasoning, however, we review for plain error. United States v.1
Benford, 574 F.3d 1228, 1231 (9th Cir. 2009). We hold that the error did not
affect Defendant’s substantial rights because, after reviewing the record as a
whole, we are convinced that the district court would impose the same sentence on
remand. In other words, there is no "probability of a different result . . . sufficient
to undermine confidence in the outcome of the proceeding." United States v.
Ameline, 409 F.3d 1073, 1078 (9th Cir. 2005) (en banc) (internal quotation marks
omitted).
AFFIRMED.

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