Garcia-Labrada

MEMORANDUM *

Defendant Oscar Roberto Garcia-Labra-da appeals the district court’s imposition of a sentence of forty-three months’ imprisonment for reentering the United States without legal authorization, in violation of 8 U.S.C. § 1326 (a), and fifteen months’ imprisonment for violating the terms of his supervised release. We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm.

1. Reviewing for plain error, see Puckett v. United States, — U.S. -, 129 S.Ct. 1423, 1428 , 173 L.Ed.2d 266 (2009), we hold that the government did not breach its agreement not to oppose a two-level reduction for Defendant’s acceptance of responsibility. The prosecutor’s statements at sentencing were entirely proper and were not comparable to the conduct held to have violated the government’s agreement in United States v. Johnson, 187 F.3d 1129, 1135 (9th Cir.1999).

2. The district court erred when, during sentencing on the indicted charge, it appeared to apply an upward departure pursuant to U.S.S.G. § 7bl.4, commentary note 4. That departure guideline applies only to terms of imprisonment for revocation of supervised release, not to convictions for violations of 8 U.S.C. § 1326 (a).…