Opinion
This panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Paul J. Seave, Esq., USSAC--Office of the U.S. Attorney, Sacramento, CA, for Plaintiff-Appellee.
FPDCA--Federal Public Defender's Office, Sacramento, CA, for Defendant-Appellant.
Appeal from the United States District Court for the Eastern District of California, William B. Shubb, Chief Judge, Presiding. D.C. No. CR-98-00190-WBS.
Before: FERNANDEZ, RYMER, and BYBEE, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.
DuWayne David Cunningham appeals from the revocation of his supervised release and the 24-month sentence imposed on the revocation. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Cunningham contends that the government breached an oral plea agreement by failing to recommend that he be sentenced at the low end of the guideline range. Cunningham did not present this contention in the district court.
Claims pertaining to the breach of a plea agreement will not generally be considered for the first time on appeal. See United States v. Flores-Payon, 942 F.2d 556, 560 (9th Cir.1991). Although we may make an exception to this rule where plain error has occurred, see id., in this case we are unable to conclude that (1) there was actual error; (2) the error was plain; and (3) the error affected the defendant's substantial rights. See United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). We therefore affirm the sentence.
AFFIRMED