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

                                                                  FILED
                                                                January 14, 2009
                                No. 08-10370
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

AUSENCIO ESTRADA-MONTALVO

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Northern District of Texas
                          USDC No. 3:08-CR-9-ALL


Before SMITH, STEWART and SOUTHWICK, Circuit Judges.
PER CURIAM:*
      Ausencio Estrada-Montalvo appeals the 90-month sentence imposed
following his conviction by guilty plea to illegal reentry after deportation. See
8 U.S.C. § 1326(a), (b)(2). Estrada-Montalvo argues that the district court
erroneously believed that it lacked the authority to vary from the advisory
guidelines range based on the Government’s refusal to move for an additional
level decrease under U.S.S.G. § 3E1.1(b). The district court’s decision not to



      *
      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should not be published and is not precedent except under the limited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. 08-10370

grant a variance does not indicate that it believed that it lacked the authority to
impose a non-guidelines sentence. The totality of the circumstances reveals that
the district court denied the requested variance because it believed that a within
guidelines sentence was appropriate. See United States v. Newson, 515 F.3d 374,
379 (5th Cir.), cert. denied, 128 S. Ct. 2522 (2008).
      Estrada-Montalvo argues that the case should be remanded for
resentencing because the Government declined to file a motion for an additional
level decrease under § 3E1.1(b), amounting 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
Newson, 515 F.3d at 378-79.        Estrada-Montalvo does not argue that the
Government’s refusal to file the motion was based on an unconstitutional motive;
a defendant’s refusal to waive his right to appeal is a basis rationally related to
the purposes of § 3E1.1(b). See id. Estrada-Montalvo argues that the district
court erred in refusing to award him the additional level decrease for acceptance
of responsibility under § 3E1.1(b), but, as he concedes, the argument is
foreclosed by Newson. See Newson, 515 F.3d at 378.
      Estrada-Montalvo argues that the district court erred in assessing the 16-
level crime of violence increase based on his prior conviction for burglary of a
habitation in reliance on his Texas judicial confession, but, as he concedes, his
argument challenging the district court’s reliance on his judicial confession is
foreclosed by United States v. Garcia-Arellano, 522 F.3d 477, 481 (5th Cir.), cert.
denied, 129 S. Ct. 353 (2008).
      AFFIRMED.




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