                                                                             FILED
                             NOT FOR PUBLICATION                                 JAN 26 2010

                                                                          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. 08-10413

               Plaintiff - Appellee,              D.C. No. 4:08-CR-00033-RCC

   v.
                                                  MEMORANDUM *
 ADRIAN CHAVEZ-SILVA,

               Defendant - Appellant.



                     Appeal from the United States District Court
                              for the District of Arizona
                      Raner C. Collins, District Judge, Presiding

                             Submitted January 11, 2010 **

Before:        BEEZER, TROTT, and BYBEE, Circuit Judges.

        Adrian Chavez-Silva appeals from the 84-month sentence imposed

following his guilty-plea conviction for illegal reentry after deportation, in

violation of 8 U.S.C. § 1326(a). We have jurisdiction pursuant to 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).

AK/Research
§ 1291, and we affirm.

       Chavez-Silva contends that the district court erred by not granting a third-

point reduction for acceptance of responsibility because the government’s refusal

to move for the reduction was arbitrary and not rationally related to a legitimate

government end. This court has held that the government’s decision not to move

for the additional level reduction is not arbitrary if the government is forced to

anticipate and defend the appeal of a sentence. See United States v. Medina-

Beltran, 542 F.3d 729, 731 (9th Cir. 2008) (per curiam).

       Chavez-Silva also contends that the sentence is unreasonable because the

district court declined to grant a downward departure for imperfect duress and

failed to consider the 18 U.S.C. § 3553(a) sentencing factors. The record as a

whole reflects that the district court adequately considered Chavez-Silva’s

arguments in support of his request for a departure and/or a variance, but found the

circumstances insufficient to justify a sentence below the advisory Guidelines

range. The district court did not procedurally err and the sentence is substantively

reasonable under the totality of the circumstances. See Gall v. United States, 552

U.S. 38, 51-52 (2007); see also United States v. Carty, 520 F.3d 984, 993 (9th Cir.

2008) (en banc).

       AFFIRMED.


AK/Research                                2                                     08-10413
