FILED
NOT FOR PUBLICATION JAN 12 2012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, Nos. 10-10542
10-10543
Plaintiff - Appellee,
D.C. No. 2:98-cr-00856-RCC-DTF
v. D.C. No. 4:09-cr-02813-RCC-DTF
FRANCISCO JAVIER DUARTE-
SABORI, a.k.a. Francisco Javier Duarte, MEMORANDUM *
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Raner C. Collins, District Judge, Presiding
Submitted December 19, 2011 **
Before: GOODWIN, WALLACE, and McKEOWN, Circuit Judges.
In these consolidated appeals, Francisco Javier Duarte-Sabori appeals from
the 63-month sentence imposed following his guilty-plea conviction for re-entry
after deportation, in violation of 8 U.S.C. § 1326, and from the consecutive four-
*
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).
month sentence imposed following revocation of supervised release. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
Duarte-Sabori contends that the district court erred by failing to explain its
decision to deny a departure for cultural assimilation. He also contends that his
sentence is substantively unreasonable in light of the 18 U.S.C. § 3553(a)
sentencing factors and the district court’s decision to impose a consecutive
sentence for the supervised release violation. The district court did not
procedurally err, and Duarte-Sabori’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) and 3583(e). See Gall v. United States, 552 U.S. 38, 51 (2007);
U.S.S.G. § 7B1.3(f) (recommending that a supervised release revocation sentence
be ordered to be served consecutively to “any sentence of imprisonment that the
defendant is serving”).
Duarte-Sabori also contends that the government acted arbitrarily by refusing
to move for a third point reduction for acceptance of responsibility under U.S.S.G.
§ 3E1.1(b). 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).
2 10-10542& 10-10543
AFFIRMED.
3 10-10542& 10-10543