Opinion
No. 07-10069.
The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed September 24, 2008.
Karon Virginia Johnson, Esquire, Office of the U.S. Attorney, Hagatna, GU, for Plaintiff-Appellee.
William L. Gavras, Esquire, Gorman Gavras, Hagatna, GU, for Defendants-Appellant.
Appeal from the District of Guam, Frances Tydingco-Gatewood, Chief District Judge, Presiding. D.C. No. CR-05-00083-FMT.
Before: TASHIMA, SILVERMAN, N.R. SMITH, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Yi Xu Chen appeals from the 36-month sentence imposed following his guilty-plea conviction for alien smuggling, in violation of 8 U.S.C. § 1324(a)(2)(B)(ii). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Chen contends that the district court erred by permitting the Government to move for a substantial assistance departure as to only Count 4. We conclude that the district court did not plainly err. See 18 U.S.C. § 3553(e); cf. Wade v. United States, 504 U.S. 181, 185-87, 112 S.Ct. 1840, 118 L.Ed.2d 524 (1992).
Chen also contends that the district court erred at sentencing by failing to consider the Sentencing Guidelines and the other factors contained in 18 U.S.C. § 3553(a). Because Chen did not object at sentencing, plain error review applies. See United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); United States v. Dallman, 533 F.3d 755, 761-62 (9th Cir. 2008). We conclude that no relief is warranted because Chen has not shown that any error affected his substantial rights. See Dallman, 533 F.3d at 761-62.