United States v. Franky Zamudio-Gomez

MEMORANDUM

Franky Zamudio-Gomez appeals from the 41-month sentence imposed following his guilty-plea conviction for re-entry after deportation, in violation of 8 U.S.C. § 1326 . We have jurisdiction under 28 U.S.C. § 1291 , and we affirm.

Zamudio-Gomez contends that the district court erred by not granting a third point reduction for acceptance of responsibility under U.S.S.G. § 3El.l(b) in the absence of a government motion because the government withheld the motion arbitrarily. 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 3El.l(b) motion).

He also contends that his sentence is substantively unreasonable in light of the 18 U.S.C. § 3553 (a) sentencing factors. Zamudio-Gomez’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). See United States v. Treadwell, 593 F.3d 990, 1011 (9th Cir.2010) (where district court judge correctly…