                                                                           FILED
                            NOT FOR PUBLICATION                             JUL 24 2013

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-30096

               Plaintiff - Appellee,             DC No. 3:11 cr-0039 RRB

  v.
                                                 MEMORANDUM*
MARQUINN PRETISS JONES-
NELSON,

               Defendant - Appellant.


                    Appeal from the United States District Court
                              for the District of Alaska
                  Ralph R. Beistline, Chief District Judge, Presiding

                              Submitted May 21, 2013**
                                 Anchorage, Alaska

Before:        TASHIMA, TALLMAN, and N.R. SMITH, Circuit Judges.

       Defendant-Appellant Jones-Nelson appeals his sentence following his plea

of guilty to a two-count indictment for distribution of crack cocaine. He argues



          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2)(C).
that the advisory Guidelines sentence should not have been enhanced for

possession of a weapon, and that it should have been further reduced for

acceptance of responsibility. He also appeals the district court’s refusal to strike

references in the presentence investigation report (“PSR”) to his possible affiliation

with gangs. Because the facts and procedural history are familiar to the parties, we

do not recite them here, except as necessary to explain our disposition. We have

jurisdiction under 28 U.S.C. § 1291. We review the district court’s findings of fact

at the sentencing hearing for clear error. United States v. Rivera, 527 F.3d 891,

908 (9th Cir. 2008). We review de novo the district court’s understanding of the

Sentencing Guidelines, id., as well as its compliance with Federal Rule of Criminal

Procedure 32. United States v. Thomas, 355 F.3d 1191, 1194 (9th Cir. 2004). We

affirm.

      1.     Jones-Nelson first argues that the district court should not have

applied a two-level enhancement for possession of a firearm under U.S.S.G.

§ 2D1.1(b)(1). Although the physical evidence alone would have been insufficient

to find possession in this case, see United States v. Kelso, 942 F.2d 680, 682 (9th

Cir. 1991), the testimony of an informant – that Jones-Nelson did indeed possess

the firearm discovered in the car – provided additional evidence to support the

district court’s finding. We will not disturb the district court’s finding that this


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testimony was credible, see United States v. Becerra-Garcia, 397 F.3d 1167, 1172

(9th Cir. 2005); therefore, we conclude that it was not clearly erroneous for the

district court to find that Jones-Nelson possessed the firearm.

      2.     Jones-Nelson next argues that he should have been granted a third

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

Criminal defendants who accept responsibility for their crimes are entitled to two

levels of reduction. U.S.S.G. § 3E1.1(a). We have previously established,

however, that “the government’s discretion to file a motion [for a third level of

reduction] is a power, not a duty.” United States v. Johnson, 581 F.3d 994, 1001

(9th Cir. 2009) (internal quotation marks and citations omitted). The government

did not file such a motion, and there is no indication that the government’s decision

not to do so was either “animated by an unconstitutional motive,” or unrelated “to

a legitimate governmental interest.” See id. Just because the district court found

the evidence that Jones-Nelson had obstructed justice was insufficient to support a

sentencing enhancement does not mean that the government’s concerns in that

regard were arbitrary or irrational. Accordingly, Jones-Nelson was not entitled to a

third level of reduction. See id.

      3.     Finally, Jones-Nelson argues that the district court erred when it

refused to excise references to gang affiliations from the PSR. A PSR should


                                         -3-
include “any circumstances affecting the defendant’s behavior that may be helpful

in imposing sentence or in correctional treatment.” Fed. R. Crim. P.

32(d)(2)(A)(iii). A district court must resolve factual disputes in a PSR where the

dispute affects the sentencing decision; it need not do so, however, where it clearly

states that the factual dispute will not affect the decision. See United States v.

Saeteurn, 504 F.3d 1175, 1178 (9th Cir. 2007). Here, the district judge did not

resolve the factual dispute regarding gang affiliation, but did make explicit that

references in the PSR to such affiliation had “absolutely no bearing on the sentence

imposed.” Accordingly, there was no error.

      AFFIRMED.




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