United States v. Francisco Sandoval-Bustamante

FILED NOT FOR PUBLICATION OCT 3 2011 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 10-10353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. 2 10-10353