UNITED STATES v. COLULA MORALES (2019)

MEMORANDUM **

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 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.