United States of America, Plaintiff-appellee, v. Jose Maldonado-pineda, Defendant-appellant. (two Cases), 99 F.3d 1147 (9th Cir. 1996)

MEMOARNDUM^** 

Jose Maldonado-Pineda appeals his sentence under the Sentencing Guidelines. We affirm.

We decline to consider Maldonado-Pineda's contention that the government breached the plea agreement by recommending a sentence above the ten-year statutory mandatory minimum because he "failed to raise the breach of the plea agreement in district court." See United States v. Robertson, 52 F.3d 789, 791 (9th Cir. 1994). Moreover, the government complied with the clear and unambiguous terms of the plea agreement when it recommended a sentence within the applicable guidelines range.

Maldonado-Pineda's contention that he is entitled to a downward adjustment of his offense level based upon his minor participant status is foreclosed by the explicit terms of the plea agreement. The parties stipulated to an adjusted offense level of 32 and a sentencing range of 168 to 210 months, as Maldonado-Pineda's counsel acknowledged at the sentencing hearing.

Finally, we reject Maldonado-Pineda's contention that the plea agreement erroneously states the base offense level for illegal reentry. The plea agreement correctly states that the base offense level for a violation of 8 U.S.C. § 1326(b) (2) is twenty-four. See U.S.S.G. § 2L1.2(b) (2). Maldonado-Pineda's reliance on the calculation of his base offense level in the Presentence Investigation Report (PSR) is misplaced. The PSR corresponds to Maldonado-Pineda's original guilty plea to a violation of 8 U.S.C. § 1326(b) (1), which was later withdrawn.

AFFIRMED.