     Case: 13-10265      Document: 00513235982         Page: 1    Date Filed: 10/19/2015




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

                                                                                FILED
                                                                           October 19, 2015
                                    No. 13-10265
                                  Summary Calendar                           Lyle W. Cayce
                                                                                  Clerk


UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

MARIO ALBERTO RAMIREZ-AVITUA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 6:12-CR-47-1


Before REAVLEY, SMITH, and HAYNES, Circuit Judges.
PER CURIAM: *
       Mario Alberto Ramirez-Avitua (Ramirez) appeals his sentence for illegal
reentry after deportation. Ramirez argues that the Government impermissibly
withheld the third-level reduction for acceptance of responsibility under
U.S.S.G. § 3E1.1(b).
       Ramirez contends that based on Amendment 775 to the Sentencing
Guidelines, which applies to cases pending on appeal, United States v. Villegas


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 13-10265       Document: 00513235982    Page: 2   Date Filed: 10/19/2015


                                  No. 13-10265

Palacios, 756 F.3d 325, 326 & n.1 (5th Cir. 2014), the Government should not
withhold a motion for the additional one-level reduction merely because a
defendant does not agree to waive his right to appeal. See United States v.
Garcia-Carrillo, 749 F.3d 376, 377 (5th Cir.), cert. denied, 135 S. Ct. 676 (2014).
Because Ramirez did not raise this argument in the district court, our review
is for plain error. See United States v. Morales-Rodriguez, 788 F.3d 441, 443
& n.3 (5th Cir. 2015).
      There is no evidence in the record regarding the Government’s reason for
not moving for the third-level reduction. Thus, Ramirez cannot establish clear
or obvious error in connection with the Government’s decision not to so move.
See id. at 443-44.
      The district court’s judgment is AFFIRMED.




                                        2
