NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

 v.

JORGE NUNEZ-DUENAS, 

Defendant-Appellant.

No. 15-50508

D.C. No.

3:15-cr-01751-DMS-1

MEMORANDUM*

Appeal from the United States District Court

for the Southern District of California

Dana M. Sabraw, District Judge, Presiding

Argued and Submitted November 7, 2016 

Pasadena, California

Before: BERZON, CHRISTEN, and NGUYEN, Circuit Judges.

Jorge Nunez-Duenas appeals his sentence of 48-months imprisonment for 

illegal reentry after removal in violation of 8 U.S.C. § 1326. Nunez-Duenas argues 

that the government acted in bad faith and breached the plea agreement by 

recommending a Criminal History Category of VI based on a date of prior 

imprisonment listed in the Presentence Investigation Report (“PSR”). The record 

 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

FILED

DEC 12 2016

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

reflects that this date was obtained by a probation officer from searches of certain 

state and federal databases and confirmed by the probation officer’s telephone 

conversation with a California Department of Corrections representative. We have 

jurisdiction under 28 U.S.C. § 1291. United States v. Jacobo Castillo, 496 F.3d 

947, 957 (9th Cir. 2007) (en banc).1 We enforce Nunez-Duenas’ appeal waiver 

and dismiss his appeal.

1. Nunez-Duenas contends that the government acted in bad faith in 

arguing for a Criminal History Category of VI because there was not sufficient 

evidence of the date of one imprisonment for revocation of parole, but he does not 

challenge the accuracy of that date. We have rejected a parallel argument in a 

similar context, holding that a district court does not abuse its discretion in 

sentencing based on prior convictions in a PSR derived from the same databases

used here, so long as the defendant neither disputes the factual accuracy of the 

information nor identifies indicia of unreliability. See United States v. RomeroRendon, 220 F.3d 1159, 1162–63 (9th Cir. 2000); United States v. Marin-Cuevas, 

147 F.3d 889, 894–895 & n.6 (9th Cir. 1998). Nunez-Duenas offers no reason why 

 

1 We need not resolve the parties’ dispute over whether the applicable standard of 

review is clear error or de novo because the result is the same under either 

standard. See United States v. Quach, 302 F.3d 1096, 1100 (9th Cir. 2002). 
3 

this precedent cannot apply where, as here, the plea agreement gave the 

government discretion to recommend a sentence “as calculated by the Government 

at the time of sentencing” and made clear that there was “no agreement as to [the]

defendant’s Criminal History Category.”

2. Nunez-Duenas argues that the date in the PSR was unreliable because 

it was absent from a rap sheet summary attached to the criminal complaint with 

which he was charged. This argument is unpersuasive because the rap sheet 

summary does not purport to be a complete list of Nunez-Duenas’ dates of 

incarceration.

3. Nunez-Duenas notes that the government stated, after losing its

request for a Criminal History Category of VI, that the district court “properly 

calculated” a Criminal History Category of V. Nunez-Duenas cites no authority 

suggesting that this stray remark, made in the context of an alternative argument

for a longer sentence, signifies anything more than the government’s submission to 

the district court’s decision.

4. Because we hold that the government did not act in bad faith or 

breach Nunez-Duenas’s plea agreement, we enforce the appellate waiver in NunezDuenas’ plea agreement and dismiss his appeal. See United States v. Hernandez-
4 

Castro, 814 F.3d 1044, 1046 (9th Cir. 2016).2

DISMISSED.

 

2 We DENY AS MOOT the government’s Motion to Supplement the Record.