972 F. 2d 1344 - United States v. Delgado-Peru

MEMORANDUM*

Nicholas Delgado-Peru appeals from the district court's imposition of a 115-month sentence. We affirm.

The plain language of section four of the plea agreement waives Delgado-Peru's right to appeal his sentence. Delgado-Peru argues that the plea agreement is ineffective because the government breached the agreement. The government could have avoided this argument entirely if it had made its recommendations explicitly at the time of sentencing, instead of merely referring to the plea agreement. We need not resolve this issue, however, because even if the government breached the plea agreement, Delgado-Peru waived any objection by failing to raise the alleged breach in the district court. United States v. Flores-Payon, 942 F.2d 556, 558 (9th Cir.1991) (defendant may not raise breach of a plea agreement for the first time on appeal). The statement made by Delgado-Peru's counsel in the sentencing hearing--"Your Honor, first of all I would urge you to go, as the Government would also recommend, the bottom of the guidelines for the reasons stated in the presentence report...."--cannot reasonably be construed as an objection to a breach by the government of its agreement with Delgado-Peru. The district court clearly did not understand the statement to be an objection. Neither the court nor either party discussed, or even mentioned, the alleged breach thereafter. We conclude that Delgado-Peru waived any objection to a breach of the plea agreement. Accordingly, the sentence imposed by the district court is

AFFIRMED.