Nunez

MEMORANDUM **

Defendant Fermín Nunez pleaded guilty to illegally reentering the United States after deportation in violation of 8 U.S.C. § 1326 but refused to enter a plea agreement with the government, thus retaining his right to appeal. Despite Defendant’s plea, the government refused to move for a decrease in Defendant’s sentence under U.S.S.G. § 3El.l(b). The district court sentenced Defendant to 51 months in prison, in part based on a finding that Defendant had a prior conviction for a crime of violence.

1. Defendant argues that the government’s decision not to file a § 3El.l(b) motion despite Defendant’s guilty plea was an abuse of prosecutorial discretion. “The government may not refuse to file a [§ 3El.l(b) ] motion on the basis of an unconstitutional motive or for reasons not rationally related to a legitimate government interest.” United States v. Espinoza-Cano, 456 F.3d 1126, 1128 (9th Cir. 2006). Here, the government cited Defendant’s refusal to enter a plea agreement as its reason for deciding not to file a § 3El.l(b) motion. By not entering a plea agreement, Defendant retained his right to appeal and forced the government to allocate related resources. The right to…