United States v. Luis Vargas-Canela
Opinion
Opinion
MEMORANDUM
Luis Fernando Vargas-Canela appeals from the 36-month sentence imposed following his guilty-plea conviction for reentry after deportation, in violation of 8 U.S.C. § 1326 . We have jurisdiction under 28 U.S.C. § 1291 , and we affirm.
Vargas-Canela first contends that the district court procedurally erred by failing to calculate properly the advisory Guidelines range. Specifically, he argues that the court erred in failing to depart on the basis of the relatively minor nature of his prior conviction. This argument fails because the court correctly calculated the pre-departure Guidelines range and varied downward in light of the nature of Vargas-Canela’s prior offense and other mitigating factors.
Vargas-Canela also contends that the district court erred in calculating the Guidelines range because it should have awarded him a third point for acceptance of responsibility under U.S.S.G. § 3El.l(b). This argument is without merit because Vargas-Canela has not shown that the government’s refusal to move for the third point was arbitrary or based on an unconstitutional motive. See United States v. Johnson, 581 F.3d 994, 1001 (9th Cir.2009).