NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAY 23 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-50320

Plaintiff-Appellee, D.C. No. 3:18-mj-03285-WVG-BAS-1 v.

SEBASTIAN COLULA-MORALES, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California Cynthia A. Bashant, District Judge, Presiding

Submitted May 21, 2019**

Before: THOMAS, Chief Judge, FRIEDLAND and BENNETT, Circuit Judges.

Sebastian Colula-Morales appeals from the district court’s order affirming

the 50-day sentence imposed by the magistrate judge following Colula-Morales’s

guilty-plea conviction for illegal entry, in violation of 8 U.S.C. § 1325. Colula-

Morales contends that he is entitled to remand because the government breached

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). its obligation to recommend a time-served sentence. We have jurisdiction under

28 U.S.C. § 1291, and we affirm.

We first reject the government’s argument that Colula-Morales’s appeal is

moot. The government has not met its “burden of establishing that there is no

effective relief that the court can provide,” Forest Guardians v. Johanns, 450 F.3d

455, 461 (9th Cir. 2006), because, although Colula-Morales has fully served his

sentence, he could withdraw his guilty plea in the event he succeeded on appeal.

See Buckley v. Terhune, 441 F.3d 688, 699 (9th Cir. 2006) (en banc).

Turning to the merits, we review Colula-Morales’s claim for plain error, see

United States v. Whitney, 673 F.3d 965, 970 (9th Cir. 2012), and conclude that

there is none. The record indicates that the government affirmatively made the

required time-served sentencing recommendation to the magistrate judge. The

government’s subsequent failure to reiterate that recommendation was not

tantamount to “winking at the district court to impliedly request a different

outcome.” United States v. Heredia, 768 F.3d 1220, 1231 (9th Cir. 2014) (internal

quotation marks omitted); see also United States v. Maldonado, 215 F.3d 1046,

1051-52 (9th Cir. 2000) (“When the government agrees to recommend a sentence

pursuant to a plea bargain, it need not explain its reasons nor make the

recommendation enthusiastically”).

AFFIRMED.

2 18-50320