          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                                   FILED
                                                                  April 30, 2008
                                 No. 07-10325
                               Summary Calendar               Charles R. Fulbruge III
                                                                      Clerk

UNITED STATES OF AMERICA

                                            Plaintiff-Appellee

v.

WILLIAM LYNN RAWLS

                                            Defendant-Appellant


                 Appeal from the United States District Court
                      for the Northern District of Texas
                           USDC No. 3:06-CR-200-1


Before REAVLEY, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:*
      William Lynn Rawls appeals his guilty plea conviction and 78-month
sentence for possession of child pornography in violation of 18 U.S.C.
§ 2252(a)(4)(B). Rawls asserts that the district court erred in calculating his
sentence by applying Guidelines that were not in effect on the date of his offense.
In 2003, Congress revised the relevant Guidelines to include harsher penalties
and to require the Government to file a motion before a defendant may get the
benefit of a third level reduction for acceptance of responsibility. PROTECT Act,

      *
      Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
                                  No. 07-10325

Pub. L. 108-21, at *671, 673; see U.S.S.G. § 2G2.2 (base offense level and specific
offense characteristics); § 3E1.1 (adjustment for acceptance of responsibility).
The law was promulgated on April 30, 2003. See Pub. L. 108-21. The FBI seized
the pornographic material from Rawls’s home pursuant to a search warrant the
following day.
      According to Rawls, the revised Guidelines did not go into effect until after
May 16, 2003, when they were published in the Federal Register. He asserts
that 28 U.S.C. § 994(x) requires notice and comment under the Administrative
Procedure Act (APA) before a guideline provision becomes effective. Section
994(x) provides that “[t]he provisions of [the APA] relating to publication in the
Federal Register and public hearing procedure, shall apply to the promulgation
of guidelines pursuant to this section.” § 994(x). The amendments at issue were
not promulgated by the Sentencing Commission, but by Congress.
Section 994(x) does not apply. The amended Guidelines were in effect on the
date of the offense, and the district court correctly applied them in calculating
Rawls’s sentence. See § 1B1.11.
      Rawls also asserts that the district court erred by failing to grant a three-
level downward adjustment for acceptance of responsibility. The Government
must move for the third level reduction before the district court may grant it.
See § 3E1.1(b); United States v. Newson, 515 F.3d 374, 377-78 (5th Cir. 2008).
“[T]he defendant must have notified authorities of his intention to enter a plea
of guilty at a sufficiently early point in the process so that the government may
avoid preparing for trial and the court may schedule its calendar efficiently.”
§ 3E1.1, cmt. (n.6). The Government has discretion whether to move for the
adjustment, so long as it does not act arbitrarily, irrationally, or with an
unconstitutional motive. Newson, 515 F.3d at 378.
      The Government declined to move for the third level adjustment because
Rawls waited until one week before his trial was scheduled to begin before
informing prosecutors that he intended to plead guilty. The Government had

                                        2
                                  No. 07-10325

begun preparing for trial. Accordingly, its decision not to move for the third
level reduction was not arbitrary, irrational, or prompted by an unconstitutional
motive. The district court did not err in declining to grant the third level
adjustment. See Newson, 515 F.3d at 377-78.
      Finally, Rawls asserts that FBI agents unconstitutionally delayed
executing the search warrant against him and that the Government violated his
right to a speedy trial. “When a defendant enters a voluntary and unconditional
guilty plea, the plea has the effect of waiving all nonjurisdictional defects in the
prior proceedings.” United States v. Stevens, 487 F.3d 232, 238 (5th Cir.), cert.
denied, 128 S. Ct. 336 (2007). The waiver includes “claims of governmental
misconduct during the investigation” and Fourth Amendment claims, United
States v. Cothran, 302 F.3d 279, 286 (5th Cir. 2002), and also speedy trial claims.
United States v. Bell, 966 F.2d 914, 915 (5th Cir. 1992).
      The judgment of the district court is AFFIRMED.




                                         3
