FILED
NOT FOR PUBLICATION OCT 3 2011
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. 10-10353
Plaintiff - Appellee, D.C. No. 4:09-cr-01224-FRZ
v.
MEMORANDUM *
FRANCISCO REY SANDOVAL-
BUSTAMANTE,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Frank R. Zapata, District Judge, Presiding
Submitted September 27, 2011 **
Before: HAWKINS, SILVERMAN, and W. FLETCHER, Circuit Judges.
Francisco Rey Sandoval-Bustamante appeals from the 42-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
*
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).
we affirm.
Sandoval-Bustamante contends that the district court erred by: (1) failing to
identify the legal standard it used in denying his motion to continue sentencing for
a psychological evaluation; (2) failing to adequately explain its decision to deny a
departure for cultural assimilation; and (3) awarding only a two-level downward
departure for imperfect duress under U.S.S.G. § 5K2.12. The record reflects that
the district court did not procedurally err, and that the sentence is substantively
reasonable in light of the totality of the circumstances and the 18 U.S.C. § 3553(a)
sentencing factors. See United States v. Carty, 520 F.3d 984, 992-93 (9th Cir.
2008) (en banc).
Sandoval-Bustamante also contends the government’s refusal to move for a
third point reduction for acceptance of responsibility, under U.S.S.G. § 3E1.1(b),
was arbitrary and capricious. The government’s decision not to move for the third
point was rational and not arbitrary, as Sandoval-Bustamante did not waive his
right to appeal. See United States v. Johnson, 581 F.3d 994, 1002 (9th Cir. 2009).
We grant Sandoval-Bustamante’s motion to file a late brief. We decline to
consider issues raised for the first time in Sandoval-Bustamante’s reply brief. See
Bazuaye v. INS, 79 F.3d 118, 120 (9th Cir. 1996) (per curiam) (“Issues raised for
the first time in the reply brief are waived.”).
AFFIRMED.
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