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

                                                 FILED
                                                                         November 2, 2009
                                     No. 09-10151
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

RELVY ESQUIVEL,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                           USDC No. 3:08-CR-174-ALL


Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant Relvy Esquivel appeals the 240-month sentence
imposed following his conviction by guilty plea to possessing with intent to
distribute cocaine. Esquivel contends that the district court erred in refusing to
award him the additional level decrease for acceptance of responsibility under
U.S.S.G. § 3E1.1(b) Esquivel asserts that his case should be remanded for
resentencing because the government declined to file a motion for an additional



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-10151

level decrease under § 3E1.1(b), which he contends amounts to an “incorrect
application of the Guidelines.”
      We review the government’s refusal to move for the additional level
decrease to determine whether that refusal was based on an unconstitutional
motive or was not rationally related to a legitimate end. See United States v.
Newson, 515 F.3d 374, 378-79 (5th Cir.), cert. denied, 128 S. Ct. 2522 (2008).
Esquivel does not contend that the government’s refusal to file the motion was
based on an unconstitutional motive, and a defendant’s refusal to waive his right
to appeal is a basis rationally related to the purposes of § 3E1.1(b). See id.
Esquivel’s arguments are foreclosed by Newson. See id. at 378.
      The government has filed a motion for summary affirmance. In light of
the foregoing, the government’s motion is GRANTED, and the judgment of the
district court is AFFIRMED.




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