                                                                           FILED
                           NOT FOR PUBLICATION                              JUL 03 2012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. 11-50339

              Plaintiff - Appellee,              D.C. No. 3:11-cr-01753-LAB

  v.
                                                 MEMORANDUM *
JAVIER MORALES-GALVEZ,

              Defendant - Appellant.



                    Appeal from the United States District Court
                      for the Southern District of California
                     Larry A. Burns, District Judge, Presiding

                             Submitted June 26, 2012 **

Before:       SCHROEDER, HAWKINS, and GOULD, Circuit Judges.

       Javier Morales-Galvez appeals from the 84-month sentence imposed

following his guilty-plea conviction for being a deported alien found in the United

States, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C.




          *
             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).
§ 1291, and we affirm.

    Morales-Galvez contends that the district court erred because it did not rule on

the sufficiency of the government’s rationale for refusing to make a motion for a

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

court did not err because the record reflects that the government’s reason was not

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

(“[T]he allocation and expenditure of prosecutorial resources for the purposes of

defending an appeal is a rational basis for declining to move for the third reduction

point.”).

    We decline Morales-Galvez’s request that we call for en banc review to

reconsider Johnson.

       AFFIRMED.




                                          2                                    11-50339
