                                                                           FILED
                            NOT FOR PUBLICATION                              OCT 3 2011

                                                                        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. 10-10353

               Plaintiff - Appellee,             D.C. No. 4:09-cr-01224-FRZ

  v.
                                                 MEMORANDUM *
FRANCISCO REY SANDOVAL-
BUSTAMANTE,

               Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Arizona
                     Frank R. Zapata, District Judge, Presiding

                           Submitted September 27, 2011 **

Before:        HAWKINS, SILVERMAN, and W. FLETCHER, Circuit Judges.

       Francisco Rey Sandoval-Bustamante appeals from the 42-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



          *
             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).
we affirm.

      Sandoval-Bustamante contends that the district court erred by: (1) failing to

identify the legal standard it used in denying his motion to continue sentencing for

a psychological evaluation; (2) failing to adequately explain its decision to deny a

departure for cultural assimilation; and (3) awarding only a two-level downward

departure for imperfect duress under U.S.S.G. § 5K2.12. The record reflects that

the district court did not procedurally err, and that the sentence is substantively

reasonable in light of the totality of the circumstances and the 18 U.S.C. § 3553(a)

sentencing factors. See United States v. Carty, 520 F.3d 984, 992-93 (9th Cir.

2008) (en banc).

      Sandoval-Bustamante also contends the government’s refusal to move for a

third point reduction for acceptance of responsibility, under U.S.S.G. § 3E1.1(b),

was arbitrary and capricious. The government’s decision not to move for the third

point was rational and not arbitrary, as Sandoval-Bustamante did not waive his

right to appeal. See United States v. Johnson, 581 F.3d 994, 1002 (9th Cir. 2009).

      We grant Sandoval-Bustamante’s motion to file a late brief. We decline to

consider issues raised for the first time in Sandoval-Bustamante’s reply brief. See

Bazuaye v. INS, 79 F.3d 118, 120 (9th Cir. 1996) (per curiam) (“Issues raised for

the first time in the reply brief are waived.”).

      AFFIRMED.


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