United States v. Eliseo Delgadillo-Avila

MEMORANDUM

Elíseo Delgadillo-Avila appeals the sentence imposed by the district court following his guilty plea to one count of being found in the United States after deporta tion, in violation of 8 U.S.C. § 1326 . We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we vacate and remand.

Delgadillo contends that the government breached the plea agreement by indicating in a footnote in its sentencing summary chart that the presentence report “correctly” calculated a sentence enhancement and that the government had failed to account for the prior conviction in its calculation due to an “oversight,” but that it would nevertheless “stand[] by” the lesser enhancement it had agreed to in the plea agreement. Even if Delgadillo did not waive this argument, the government did not breach the plea agreement by noting that the sentence enhancement was correctly calculated under plain error review. See United States v. Cannel, 517 F.3d 1172, 1177 (9th Cir.2008) (holding on plain error review that the government did not breach its plea agreement where it “agreed that the PSR accurately assessed” predicate conduct that supported a five-level sentence enhancement but stated that it “stands…