United States v. Julio Jimenez

FILED

NOT FOR PUBLICATION MAR 05 2012

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 11-50300

Plaintiff - Appellee, D.C. No. 3:11-cr-00604-MMA-1

v.

MEMORANDUM *

JULIO HERNANDEZ JIMENEZ,

Defendant - Appellant.

Appeal from the United States District Court for the Southern District of California Michael M. Anello, District Judge, Presiding

Argued and Submitted February 14, 2012 Pasadena, California

Before: PREGERSON and BEA, Circuit Judges, and PRATT, Chief District Judge.**

Julio Jimenez appeals the district court's imposition of a twenty-month

custodial sentence for his conviction of being a deported alien in the United States

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable Robert W. Pratt, Chief District Judge for the U.S. District Court for Southern Iowa, sitting by designation. in violation of 8 U.S.C. y 1326. The parties are familiar with the facts underlying

the appeal and thus we do not include them…

Concurring.

I concur that, under United States v. Medina-Beltran, 542 F.3d 729, 731 (9th Cir.2008), the government’s decision not to move for an additional one-level sentence reduction pursuant to United States Sentencing Guidelines § 3El.l(b) because Jimenez did not waive his right to appeal his sentence, was not arbitrary. I write separately to voice my disagreement with the discretion afforded to the government in deciding whether to move for an additional one-level sentence reduction under § 3El.l(b) by this Court’s decisions in Medina-Beltran, United States v. Johnson, 581 F.3d 994, 1002-07 (9th Cir.2009) and United States v. Espinoza-Cano, 456 F.3d 1126, 1135-1137 (9th Cir.2006).

A defendant who clearly demonstrates acceptance of responsibility for the offense and who, prior to any reduction for such acceptance, has an offense level of sixteen or greater, is eligible for a one-level reduction “upon motion of the government stating that the defendant has assisted authorities in the investigation or prosecution of his own misconduct by timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and…

MEMORANDUM **

Julio Jimenez appeals the district court’s imposition of a twenty-month custodial *681 sentence for his conviction of being a deported alien in the United States in violation of 8 U.S.C. § 1326 . The parties are familiar with the facts underlying the appeal and thus we do not include them here.

Jimenez challenges his sentence of twenty months in custody for a conviction of being a deported alien found in the United States. He pleaded guilty unconditionally, and received a two-level sentencing reduction under United States Sentencing Guidelines (USSG) § 3El.l(a). Jimenez argues on appeal that the government was required to move for a third one-level sentencing reduction under USSG § 3El.l(b), because Jimenez’s failure to waive his right to appeal his sentence was an illegitimate and therefore arbitrary basis to refuse to move for the additional reduction. This argument is foreclosed by United States v. Medina-Beltran, 542 F.3d 729, 731 (9th Cir.2008), and United States v. Johnson 581 F.3d 994, 1002 (9th Cir.2009).

AFFIRMED.

This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.