                                                                            FILED
                            NOT FOR PUBLICATION                              MAR 14 2011

                                                                        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. 10-10061

               Plaintiff - Appellee,             D.C. No. 4:09-cr-01929-DCB-
                                                 DTF
  v.

MAURICIO ALFREDO PENA-                           MEMORANDUM *
MANZANAREZ,

               Defendant - Appellant.



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

                              Submitted March 8, 2011 **

Before:        FARRIS, LEAVY, and BYBEE, Circuit Judges.

       Mauricio Alfredo Pena-Manzanarez appeals from his guilty-plea conviction

and 65-month sentence for importation of cocaine, in violation of 21 U.S.C. §§

952(a), 960(a)(1) and (b)(1)(B)(ii), and possession with intent to distribute cocaine,


          *
             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).
in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(ii)(II). We have jurisdiction

under 28 U.S.C. § 1291, and we affirm.

      Pena-Manzanarez contends that the district court erred by denying his

request for a minor role adjustment, pursuant to U.S.S.G. § 3B1.2. The district

court did not clearly err when it denied the request. See United States v. Cantrell,

433 F.3d 1269, 1282 (9th Cir. 2006) (describing standard); see also United States

v. Lui, 941 F.2d 844, 849 (9th Cir. 1991).

      Pena-Manzanarez further contends that the district court erred by refusing to

grant an additional one-point downward adjustment for acceptance of

responsibility, pursuant to U.S.S.G. § 3E1.1(b), despite the government’s decision

not to move for the extra point. The district court did not clearly err. The

government’s decision not to move for the third point was rational and not

arbitrary, as the defendant did not waive his right to appeal. See United States v.

Johnson, 581 F.3d 994, 1002 (9th Cir. 2009), see also United States v. Medina-

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

      AFFIRMED.




                                             2                                 10-10061
