                                                                           FILED
                            NOT FOR PUBLICATION                             MAR 12 2014

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-10630

              Plaintiff - Appellee,              D.C. No. 1:12-cr-00642-LEK-1

  v.
                                                 MEMORANDUM*
ALVAR GANTE TOLEDO,

              Defendant - Appellant.


                   Appeal from the United States District Court
                              for the District of Hawaii
                   Leslie E. Kobayashi, District Judge, Presiding

                      Argued and Submitted February 20, 2014
                           University of Hawaii, Manoa

Before: HAWKINS, McKEOWN, and BEA, Circuit Judges.

       Alvar Toledo appeals the sentence entered in his case by the district court.

Because there was no objection at sentencing to breach of the plea agreement

between Toledo and the government, we review for plain error. Puckett v. United

States, 556 U.S. 129, 134–35 (2009). We affirm the district court.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      The information about Toledo’s long-term drug trafficking of approximately

38 pounds of methamphetamine was not protected by any agreement; there was

sufficient evidence that Toledo revealed the information shortly after his arrest.1

See U.S.S.G. § 1B1.8(b)(1). Nor did the government breach the plea agreement by

mentioning the 38 pounds of methamphetamine at sentencing; the plea agreement

clearly stated that Toledo was responsible for “not less than” 723.69 grams of

methamphetamine. Finally, given the other substantial information of drug

quantity provided the district court in the presentence report, any breach arising

from the prosecutor’s failure to argue that the correct starting point for sentence

calculation was Level 36, as the plea agreement provided, did not affect Toledo’s

“substantial rights” under plain error review. United States v. Olano, 507 U.S.

725, 734 (1993) (quoting Fed. R. Crim. P. 52(b)). The record shows that the court

was influenced by these considerations such that there was no “reasonable

probability that the error affected the outcome of the [sentencing].” United States

v. Whitney, 673 F.3d 965, 972 (9th Cir. 2012) (quoting United States v. Marcus,

560 U.S. 258, 262 (2010) (alteration in original); see also Puckett, 556 U.S. at

134–35.

      AFFIRMED.



      1
      The panel declines to take judicial notice of the proffer letter dated
December 1, 2011.
