United States v. Franky Zamudio-Gomez , 469 F. App'x 535 ( 2012 )

FILED
NOT FOR PUBLICATION FEB 24 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-10193
Plaintiff - Appellee, D.C. No. 4:10-cr-03321-DCB-
CRP
v.
FRANKY ZAMUDIO-GOMEZ, MEMORANDUM *
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
David C. Bury, District Judge, Presiding
Submitted February 21, 2012 **
Before: FERNANDEZ, McKEOWN, and BYBEE, Circuit Judges.
Franky Zamudio-Gomez appeals from the 41-month sentence imposed
following his guilty-plea conviction for re-entry after deportation, in violation of 8
U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Zamudio-Gomez contends that the district court erred by not granting a third
point reduction for acceptance of responsibility under U.S.S.G. § 3E1.1(b) in the
absence of a government motion because the government withheld the motion
arbitrarily. His argument is foreclosed by United States v. Johnson, 581 F.3d 994,
1002-04 (9th Cir. 2009) (district court did not err in declining to grant additional
one-level reduction because defendant’s refusal to waive appellate rights was
rational basis for the government’s decision not to file a section 3E1.1(b) motion).
He also contends that his sentence is substantively unreasonable in light of
the 18 U.S.C. § 3553(a) sentencing factors. Zamudio-Gomez’s below-Guidelines
sentence is reasonable in light of the totality of the circumstances and the
sentencing factors set forth in 18 U.S.C. § 3553(a). See United States v. Treadwell,
593 F.3d 990, 1011 (9th Cir. 2010) (where district court judge correctly calculated
and carefully reviewed the Guidelines range, “he necessarily gave significant
weight and consideration to the need to avoid unwarranted disparities”).
AFFIRMED.
2 11-10193