FILED
NOT FOR PUBLICATION JUL 03 2012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, No. 11-50339
Plaintiff - Appellee, D.C. No. 3:11-cr-01753-LAB
v.
MEMORANDUM *
JAVIER MORALES-GALVEZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted June 26, 2012 **
Before: SCHROEDER, HAWKINS, and GOULD, Circuit Judges.
Javier Morales-Galvez appeals from the 84-month sentence imposed
following his guilty-plea conviction for being a deported alien found in the United
States, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C.
*
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).
§ 1291, and we affirm.
Morales-Galvez contends that the district court erred because it did not rule on
the sufficiency of the government’s rationale for refusing to make a motion for a
third point for acceptance of responsibility under U.S.S.G. § 3E1.1(b). The district
court did not err because the record reflects that the government’s reason was not
improper. See United States v. Johnson, 581 F.3d 994, 1002 (9th Cir. 2009)
(“[T]he allocation and expenditure of prosecutorial resources for the purposes of
defending an appeal is a rational basis for declining to move for the third reduction
point.”).
We decline Morales-Galvez’s request that we call for en banc review to
reconsider Johnson.
AFFIRMED.
2 11-50339