IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 2, 2009
No. 09-10151
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
RELVY ESQUIVEL,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:08-CR-174-ALL
Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Relvy Esquivel appeals the 240-month sentence
imposed following his conviction by guilty plea to possessing with intent to
distribute cocaine. Esquivel contends that the district court erred in refusing to
award him the additional level decrease for acceptance of responsibility under
U.S.S.G. § 3E1.1(b) Esquivel asserts that his case should be remanded for
resentencing because the government declined to file a motion for an additional
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
No. 09-10151
level decrease under § 3E1.1(b), which he contends amounts to an “incorrect
application of the Guidelines.”
We review the government’s refusal to move for the additional level
decrease to determine whether that refusal was based on an unconstitutional
motive or was not rationally related to a legitimate end. See United States v.
Newson, 515 F.3d 374, 378-79 (5th Cir.), cert. denied, 128 S. Ct. 2522 (2008).
Esquivel does not contend that the government’s refusal to file the motion was
based on an unconstitutional motive, and a defendant’s refusal to waive his right
to appeal is a basis rationally related to the purposes of § 3E1.1(b). See id.
Esquivel’s arguments are foreclosed by Newson. See id. at 378.
The government has filed a motion for summary affirmance. In light of
the foregoing, the government’s motion is GRANTED, and the judgment of the
district court is AFFIRMED.
2