United States v. Francisco Valenzuela-Ramirez

581 F. App'x 635

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 27, 2014
• Docket: 13-10106
• Status: Unpublished

Opinion

MEMORANDUM ***

Francisco Javier Valenzuela-Ramirez appeals from the district court’s judgment and challenges the 50-month sentence imposed following his guilty-plea conviction for reentry after deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Valenzuela-Ramirez contends that the government refused to move for a third-level reduction for acceptance of responsibility under U.S.S.G. § 3El.l(b) on the improper basis that he would not waive his appellate rights. A defendant who challenges the government’s refusal to move for a third point for acceptance of responsibility must show that the government’s refusal was based on an unconstitutional motive or was arbitrary. See United States v. Espinoza-Cano, 456 F.3d 1126, 1136 (9th Cir.2006).

The sole reason the government proffered in the district court for its refusal to move for the third point was the “relatively substantial work” it had done in preparation for trial. The government “is in the best position to (1) know what it has and has not done in relation to trial preparation, and (2) assess whether the defendant’s notification of an intent to plead guilty has assisted the government in avoiding trial preparation.” Id. There is nothing in the record to support Valenzuela-Ramirez’s suggestion that the government misrepresented its trial preparation efforts or that it had a different motivation for declining to file the motion for the third point than the one it offered. We, therefore, affirm.

AFFIRMED.

*** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.