United States v. Eberto Gutierrez

983 F.2d 1078 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. UNITED STATES of America, Plaintiff-Appellee, v. Eberto GUTIERREZ, Defendant-Appellant. No. 91-10118. United States Court of Appeals, Ninth Circuit. Submitted Dec. 9, 1992. * Decided Dec. 14, 1992. Before TANG, PREGERSON and T.G. NELSON, Circuit Judges. 1 MEMORANDUM ** 2 Eberto Gutierrez appeals from his sentence, imposed following a guilty plea to one count of attempted possession with intent to distribute marijuana in violation of 21 U.S.C. §§ 841 (a)(1), 841(b)(1)(C), and 846. Gutierrez contends that his sentence should be vacated because the government violated the terms of his plea agreement. We have jurisdiction under 28 U.S.C. § 1291 and we vacate and remand. 3 Generally, a claim that a plea agreement has been breached cannot be raised for the first time on appeal. United States v. Flores-Payon, 942 F.2d 556, 558 (9th Cir.1991); United States v. Nakagawa, 924 F.2d 800, 803 (9th Cir.1991).…