United States v. Medina-Beltran ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 06-10181
Plaintiff-Appellee,
v.  D.C. No.
CR-05-00796-DCB
IGNACIO MEDINA-BELTRAN,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Arizona
David C. Bury, District Judge, Presiding
Argued and Submitted
August 15, 2008—San Francisco, California
Filed September 5, 2008
Before: Eugene E. Siler, Jr.,* M. Margaret McKeown and
Consuelo M. Callahan, Circuit Judges.
Per Curiam Opinion
*The Honorable Eugene E. Siler, Jr., Senior United States Circuit Judge
for the Sixth Circuit, sitting by designation.
12367
UNITED STATES v. MEDINA-BELTRAN 12369
COUNSEL
Jon M. Sands, Federal Public Defender, Saul M. Huerta,
Assistant Federal Public Defender, Tucson, Arizona, for the
appellant.
Paul K. Charlton, United States Attorney for the District of
Arizona, Christina Cabanillas, Appellate Chief, George Ferko,
Assistant United States Attorney, Tucson, Arizona, for the
appellee.
OPINION
PER CURIAM:
Ignacio Medina-Beltran (“Medina-Beltran”) appeals the
sentence imposed following his guilty plea to illegal re-entry
after deportation in violation of 8 U.S.C. § 1326. We reject
his various challenges to his sentence and affirm.
[1] Medina-Beltran disputes the district court’s refusal to
grant him a third-level reduction for acceptance of responsi-
bility under U.S.S.G. § 3E1.1(b).1 We have previously recog-
1
We review for clear error a district court’s decision to reduce a defen-
dant’s sentence for acceptance of responsibility, but review de novo
12370 UNITED STATES v. MEDINA-BELTRAN
nized that “the government has been vested with broad discre-
tion to determine when the [§ 3E1.1(b)] adjustment is appro-
priate.” United States v. Espinoza-Cano, 456 F.3d 1126,
1137-38 (9th Cir. 2006); see also United States v. Moreno-
Trevino, 432 F.3d 1181, 1186 (10th Cir. 2005) (stating that
§ 3E1.1(b) confers on the government “a power, not a duty”)
(quoting Wade v. United States, 504 U.S. 181, 185 (1992)).
Nonetheless, the government cannot refuse to file a motion
for the reduction on the basis of an unconstitutional motive or
arbitrarily, i.e., for reasons not rationally related to any legiti-
mate governmental interest. Espinoza-Cano, 456 F.3d at
1136. Medina argues only that the prosecutor acted arbitrarily
in refusing to move for the additional reduction.
[2] Although Medina-Beltran pled guilty and avoided a trial
on the substantive offense, he objected to his sentencing
enhancement and rejected the government’s proposed appeal
waiver. The government anticipated and defended his appeal
of his sentence. Under these circumstances, the government’s
decision not to move for the additional level reduction was
not arbitrary. See United States v. Newson, 515 F.3d 374, 378-
79 (5th Cir. 2008) (concluding that the government’s failure
to move for reduction was not arbitrary where the defendant
refused the appellate waiver provision in a proposed plea
agreement).
[3] In the alternative, Medina argues that the Feeney
Amendment violates the separation of powers principle by
shifting from the judiciary to the executive branch the power
to decide whether an additional level reduction is appropriate.
This amendment, which is part of the Prosecutorial Remedies
and Other Tools to End the Exploitation of Children Today
(PROTECT) Act of 2003, Pub. L. No. 108-21, § 401(g), 117
whether it misapprehended the law with respect to acceptance of responsi-
bility. United States v. Espinoza-Cano, 456 F.3d 1126, 1130 (9th Cir.
2006) (citation omitted).
UNITED STATES v. MEDINA-BELTRAN 12371
Stat. 650, 671-72 (2003), requires the government to make a
motion in order for the defendant to receive the additional
offense-level decrease under U.S.S.G. § 3E1.1(b). We agree
with our sister circuits who have considered this identical
challenge; the Feeney Amendment does not usurp judicial
power by shifting this sentencing responsibility to the execu-
tive branch, and does not violate the separation of powers.
See, e.g., Newson, 515 F.3d at 376; United States v. Delk, 132
F. App’x. 448, 449 (4th Cir. 2005) (unpublished).
[4] The Supreme Court has recognized that federal sentenc-
ing “never has been thought to be assigned by the Constitu-
tion to the exclusive jurisdiction of any one of the three
Branches of Government.” United States v. Mistretta, 488
U.S. 361, 364 (1989). In evaluating a similar separation of
powers argument with respect to substantial assistance
motions under U.S.S.G. § 5K1.1, we observed that the sen-
tencing process “is not inherently judicial, and that, even if it
were, the government’s authority to recommend a reduced
sentence [i]s not impermissibly obtrusive.” United States v.
Ayarza, 874 F.2d 647, 653 (9th Cir. 1987) (quoting United
States v. Severich, 676 F. Supp. 1209, 1212-13 (S.D. Fla.
1988), aff’d, 872 F.2d 434 (11th Cir. 1989)).
[5] We are not persuaded by Medina-Beltran’s procedural
challenges. The record reflects that the court reviewed his
sentencing memorandum, in which Medina-Beltran discussed
application of the 18 U.S.C. § 3553(a) factors, and considered
his arguments in favor of a lesser sentence. See United States
v. Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en banc).
Although brief, the court’s explanation of the sentence, which
was at the low end of the Guidelines range, was sufficient.
See id.[6] Medina-Beltran finally argues that the 46-month sen-
tence was substantively unreasonable. A “correctly calculated
Guidelines sentence will normally not be found unreasonable
on appeal.” Id. at 988. There is “nothing unusual about
12372 UNITED STATES v. MEDINA-BELTRAN
[Medina-Beltran]’s circumstances to compel a lower sentence
than the low-end of the Guidelines range.” See id. at 996.
AFFIRMED.