                                                                             FILED
                            NOT FOR PUBLICATION                               FEB 24 2012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. 11-10193

               Plaintiff - Appellee,              D.C. No. 4:10-cr-03321-DCB-
                                                  CRP
  v.

FRANKY ZAMUDIO-GOMEZ,                             MEMORANDUM *

               Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Arizona
                     David C. Bury, District Judge, Presiding

                            Submitted February 21, 2012 **

Before:        FERNANDEZ, McKEOWN, and BYBEE, Circuit Judges.

       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.




          *
             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).
      Zamudio-Gomez contends that the district court erred by not granting a third

point reduction for acceptance of responsibility under U.S.S.G. § 3E1.1(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 3E1.1(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 calculated

and carefully reviewed the Guidelines range, “he necessarily gave significant

weight and consideration to the need to avoid unwarranted disparities”).

      AFFIRMED.




                                           2                                    11-10193
