Rubalcava-Rodriguez

MEMORANDUM **

Cruz Rubalcava-Rodriguez (“Rubalcava”) appeals from the district court’s imposition of a 120-month sentence for being an alien found in the United States after having been previously removed, in violation of 8 U.S.C. § 1326 . The facts are known to the parties and we do not repeat them here.

I

Although Rubalcava entered into a plea agreement that expressly limited his right to appeal his sentence, the government fails specifically to argue that Rubalcava waived his right to appeal; thus this argument has been waived. See United States v. Garcia-Lopez, 309 F.3d 1121, 1122-23 (9th Cir.2002) (holding that where the government did not argue waiver of appeal in its briefs or at oral argument, the issue was waived). We therefore consider the merits of the district court’s sentence.

II

After United States v. Booker, 543 U.S. 220 , 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005), we review the district court’s sentencing under a two-step analysis. United States v. Cantrell, 433 F.3d 1269, 1279-81 (9th *604 Cir.2006). First, we review whether the district court properly calculated the Sentencing Guidelines’ range even though the court has discretion to impose a non-Guidelines…