United States v. Estrada-Montalvo ( 2009 )


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  •           IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    January 14, 2009
    No. 08-10370
    Summary Calendar               Charles R. Fulbruge III
    Clerk
    UNITED STATES OF AMERICA
    Plaintiff-Appellee
    v.
    AUSENCIO ESTRADA-MONTALVO
    Defendant-Appellant
    Appeal from the United States District Court
    for the Northern District of Texas
    USDC No. 3:08-CR-9-ALL
    Before SMITH, STEWART and SOUTHWICK, Circuit Judges.
    PER CURIAM:*
    Ausencio Estrada-Montalvo appeals the 90-month sentence imposed
    following his conviction by guilty plea to illegal reentry after deportation. See
    
    8 U.S.C. § 1326
    (a), (b)(2). Estrada-Montalvo argues that the district court
    erroneously believed that it lacked the authority to vary from the advisory
    guidelines range based on the Government’s refusal to move for an additional
    level decrease under U.S.S.G. § 3E1.1(b). The district court’s decision not to
    *
    Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
    should not be published and is not precedent except under the limited
    circumstances set forth in 5TH CIR. R. 47.5.4.
    No. 08-10370
    grant a variance does not indicate that it believed that it lacked the authority to
    impose a non-guidelines sentence. The totality of the circumstances reveals that
    the district court denied the requested variance because it believed that a within
    guidelines sentence was appropriate. See United States v. Newson, 
    515 F.3d 374
    ,
    379 (5th Cir.), cert. denied, 
    128 S. Ct. 2522
     (2008).
    Estrada-Montalvo argues that the case should be remanded for
    resentencing because the Government declined to file a motion for an additional
    level decrease under § 3E1.1(b), amounting to an “incorrect application of the
    Guidelines.” We review the Government’s refusal to move for the additional
    level decrease to determine whether that refusal was based on an
    unconstitutional motive or was not rationally related to a legitimate end. See
    Newson, 
    515 F.3d at 378-79
    .        Estrada-Montalvo does not argue that the
    Government’s refusal to file the motion was based on an unconstitutional motive;
    a defendant’s refusal to waive his right to appeal is a basis rationally related to
    the purposes of § 3E1.1(b). See id. Estrada-Montalvo argues that the district
    court erred in refusing to award him the additional level decrease for acceptance
    of responsibility under § 3E1.1(b), but, as he concedes, the argument is
    foreclosed by Newson. See Newson, 
    515 F.3d at 378
    .
    Estrada-Montalvo argues that the district court erred in assessing the 16-
    level crime of violence increase based on his prior conviction for burglary of a
    habitation in reliance on his Texas judicial confession, but, as he concedes, his
    argument challenging the district court’s reliance on his judicial confession is
    foreclosed by United States v. Garcia-Arellano, 
    522 F.3d 477
    , 481 (5th Cir.), cert.
    denied, 
    129 S. Ct. 353
     (2008).
    AFFIRMED.
    2
    

Document Info

Docket Number: 08-10370

Judges: Smith, Stewart, Southwick

Filed Date: 1/14/2009

Precedential Status: Non-Precedential

Modified Date: 11/5/2024