United States v. Erwin Alvarado , 478 F. App'x 473 ( 2012 )

FILED
NOT FOR PUBLICATION SEP 14 2012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. 11-10622
Plaintiff - Appellee, D.C. No. 4:11-cr-02002-JGZ-
BPV-1
v.
ERWIN ALVARADO, MEMORANDUM *
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Cindy K. Jorgenson, District Judge, Presiding
Submitted September 10, 2012 **
Before: WARDLAW, CLIFTON, and N.R. SMITH, Circuit Judges.
Erwin Alvarado appeals from the 24–month sentence imposed following his
guilty-plea conviction for illegal 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).
Alvarado contends that the district court erred by not sua sponte granting
him a third-level reduction for acceptance of responsibility. He argues that the
reason cited by the government for refusing to make the motion for the reduction,
that he reserved his right to appeal, is an impermissible reason under U.S.S.G. §
3E1.1(b). As Alvarado concedes, this argument is foreclosed by United States v.
Johnson, 581 F.3d 994, 1002 (9th Cir. 2009), where we held that the expenditure
of resources in anticipating and preparing for an appeal is an appropriate
consideration under U.S.S.G. § 3E1.1(b).
AFFIRMED.