United States v. Christopher Maggio

MEMORANDUM

Defendant appeals his sentence of 90 months of imprisonment and 20 years of supervised release, imposed as a result of his guilty plea to one count of possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). We have jurisdiction pursuant to 18 U.S.C. § 3742 (a).

I. Breach of the Plea Agreement

Because it was not raised below, we review the defendant’s challenge regarding breach of the plea agreement for plain error. United States v. Maldonado, 215 F.3d 1046, 1051 (9th Cir.2000). The government did not breach the plea agreement either by submitting the victim impact statements or by suggesting that the defendant “had already recidivated” because of his uncharged 2007 conduct. The defendant likens this case to United States v. Johnson, 187 F.3d 1129, 1135 (9th Cir.1999) and United States v. Whitney, 673 F.3d 965, 969-70 (9th Cir.2012). The victim impact statements in this case are at least indirectly related to the charged offense, making Johnson inapposite here. This case also lacks the contradictory or duplicitous conduct by the government that was present in Whitney . Here, the government consistently argued for the agreed upon 51-month sentence.…