United States of America v. ANTONIO GAMEZ ORTEGA, AKA Antonio Gamez, Sr., AKA Antonio Gamez, Jr., AKA Antonio…

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTONIO GAMEZ ORTEGA, AKA
Antonio Gamez, Sr., AKA Antonio
Gamez, Jr., AKA Antonio Gamez, AKA
Ines Ortega,
Defendant - Appellant.
No. 09-50520
D.C. No. 2:09-cr-00695-PA-1
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Submitted October 6, 2010**
Pasadena, California
Before: HALL, FISHER, and BYBEE, Circuit Judges.
Antonio Gamez-Ortega timely appeals the 77-month sentence imposed
following his guilty plea to being a deported alien found in the United States in
FILED
OCT 15 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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violation of 8 U.S.C. § 1326. He alleges that the government breached its plea
agreement to recommend a sentence of 51 months’ imprisonment—a four-level
downward departure from the 77 to 96 month Guideline range—by telling the district
court that he was a recidivist with a violent past. He also alleges that the district court
erred by omitting from its judgment an exception to a special condition of supervised
release that the court included in its oral pronouncement of sentence. We affirm the
judgment as modified.
The facts of this case are known to the parties and we need not repeat them.
Gamez-Ortega argues for the first time on appeal that the government
contradicted its recommendation of a 51-month sentence, and thereby breached its
plea agreement, by describing his prior crimes to the district court. The government
breaches its plea agreement to recommend a sentence “if, while making the
recommendation, the prosecutor contradicts that recommendation with statements
indicating a preference for a harsher sentence.” United States v. Camarillo-Tello, 236
F.3d 1024, 1027 (9th Cir. 2001).
Even if the statements constituted a breach of the plea agreement, Gamez-
Ortega has not established that any such breach was plain error. First, he has not
shown that the breach was “plain,” meaning “clear” or “obvious.” See United States
v. Olano, 507 U.S. 725, 734 (1993). The government’s comments about Gamez-

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Ortega’s violent past were accompanied by the government’s repeated
recommendation that Gamez-Ortega receive the sentence of 51 months.
Gamez-Ortega has also failed to show that the breach affected his substantial
rights by “affect[ing] the outcome of the district court proceedings.” Puckett v. United
States, 129 S. Ct. 1423, 1429 (2009) (quoting Olano, 507 U.S. at 734). See also
United States v. Campbell, 42 F.3d 1199, 1204 (9th Cir. 1994) (placing the burden on
the defendant). He claims that, had there been no breach, he would have been
sentenced to 51 months rather than to the 77 months that he ultimately received. He
notes the similarities between the district court’s reasons for rejecting the plea
agreement and the government’s comments about Gamez-Ortega’s criminal past.
This, however, only shows that the court considered Gamez-Ortega’s criminal history
in sentencing him. It does not show that the court would have sentenced him to 51
months rather than 77 months, or that it would have ignored his criminal history, had
the government not described his criminal history in its sentencing memorandum.
Indeed, the PSR also contained the details of Gamez-Ortega’s criminal history. Thus
the district court would have received this information regardless of the government’s
sentencing memorandum.
Gamez-Ortega also argues that a 51-month sentence would have been the
longest term of imprisonment he had yet received, and that it thus would have been

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sufficient to achieve the goals of sentencing. It is speculation to suggest that, without
the breach, the district court would have opted for 51 months. Thus, Gamez-Ortega
has not demonstrated plain error.
Gamez-Ortega next contends that the written judgment and commitment order
must be modified because it conflicts with the oral pronouncement of sentence. In the
oral pronouncement, the district court required Gamez-Ortega to obtain approval from
the probation officer prior to obtaining or possessing any identification document in
any name other than his true legal name. The written judgment, however, does not
contain an exception for identification documents in Gamez-Ortega’s own name. The
government does not object to modification of the written judgment to incorporate this
exception. Accordingly, the judgment shall be modified to prohibit Gamez-Ortega on
supervised release from obtaining or possessing any form of identification in any
name other than his true legal name without the prior written approval of the probation
officer. See United States v. Hicks, 997 F.2d 594, 597 (9th Cir. 1993) (“[W]here there
is a direct conflict between an unambiguous oral pronouncement of sentence and the
written judgment and commitment, . . . the oral pronouncement, as correctly reported,
must control.” (quoting United States v. Munoz-Dela Rosa, 495 F.2d 253, 256 (9th
Cir. 1974))).
The judgment is AFFIRMED as MODIFIED.

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