                                                                             FILED
                            NOT FOR PUBLICATION                               JUN 29 2012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. 11-10155

               Plaintiff - Appellee,              D.C. No. 4:09-cr-02817-DCB

  v.
                                                  MEMORANDUM *
JOSE MARIA MERAZ-VARGAS,

               Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Arizona
                     David C. Bury, District Judge, Presiding

                              Submitted June 26, 2012 **

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

       Jose Maria Meraz-Vargas appeals from the 46-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 we affirm.




          *
             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).
      Meraz-Vargas contends that the district court erred by applying an erroneous

standard for granting a departure or variance. He also contends that the district

court failed to consider all of the 18 U.S.C. § 3553(a) sentencing factors. The

record belies these contentions.

      Meraz-Vargas next contends that the district court erred by failing to award

a third point for acceptance of responsibility. This argument fails because Meraz-

Vargas has not shown that the government’s refusal to move for the third point was

arbitrary or based on an unconstitutional motive. See United States v. Johnson,

581 F.3d 994, 1001 (9th Cir. 2009).

      Meraz-Vargas finally contends that his sentence is substantively

unreasonable because the district court did not give sufficient weight to mitigating

factors and failed to grant a departure or variance on the ground that the

seriousness of his prior conviction was overstated or on any other basis. In light of

the totality of the circumstances and the sentencing factors set forth in 18 U.S.C.

§ 3553(a), the within-Guidelines sentence is reasonable. See Gall v. United States,

552 U.S. 38, 51 (2007); see also United States v. Dallman, 533 F.3d 755, 761 (9th

Cir. 2008) (failure to grant a departure is reviewed as part of the substantive

reasonableness of the sentence).

      AFFIRMED.


                                           2                                      11-10155
