                             NOT FOR PUBLICATION

                      UNITED STATES COURT OF APPEALS                         FILED
                             FOR THE NINTH CIRCUIT                           MAR 10 2010

                                                                         MOLLY C. DWYER, CLERK
                                                                          U .S. C O U R T OF APPE ALS

 UNITED STATES OF AMERICA,                       No. 06-10255

               Plaintiff - Appellee,             D.C. No. CR-05-00858-FRZ

   v.
                                                 MEMORANDUM *
 LUIS ALBERTO MONTOYA-
 CAMPILLO,

               Defendant - Appellant.



                     Appeal from the United States District Court
                              for the District of Arizona
                      Frank R. Zapata, District Judge, Presiding

                            Submitted February 16, 2010 **


Before:        FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.

        Luis Alberto Montoya-Campillo appeals from the 121-month sentence

imposed following his guilty-plea conviction for possession with intent to

          *
             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).

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distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(viii),

and importation of methamphetamine, in violation of 21 U.S.C. §§ 952(a) and

960(a)(1), (b)(1)(H). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we

affirm.

       Montoya-Campillo contends that the district court erred when it denied his

request for a minor role adjustment, pursuant to U.S.S.G. § 3B1.2(b). The record

indicates that the district court applied the correct legal standards and did not

clearly err by denying the adjustment. See United States v. Cantrell, 433 F.3d

1269, 1282-83 (9th Cir. 2006); see also United States v. Lui, 941 F.2d 844, 849

(9th Cir. 1991); United States v. Hursh, 217 F.3d 761, 770 (9th Cir. 2000).

       Montoya-Campillo also contends that the district court plainly erred when it

concluded that it lacked the authority to review the government’s refusal to move

for a third point adjustment for acceptance of responsibility, pursuant to U.S.S.G.

§ 3E1.1(b). This contention lacks merit because Montoya-Campillo has not

alleged that the government acted arbitrarily or with an unconstitutional motive.

See United States v. Espinoza-Cano, 456 F.3d 1126, 1137-38 (9th Cir. 2006).

       Montoya-Campillo next contends that the district court procedurally erred

by: (1) failing to consider and explain why it rejected his argument about aberrant

conduct; and (2) placing excessive weight on the seriousness of the offense and the


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advisory Guidelines range. He also contends that his sentence is substantively

unreasonable. The record indicates that the district court did not procedurally err,

and that the sentence is substantively reasonable in light of the totality of the

circumstances and the 18 U.S.C. § 3553(a) sentencing factors. See United States v.

Carty, 520 F.3d 984, 992-93 (9th Cir. 2008) (en banc).

       The government’s “Motion to Strike Defendant’s F.R.A.P. 28(j) Letter of

Supplemental Authorities” is denied. See 9th Cir. Rule 28-6. Montoya-Campillo’s

request to strike the government’s motion is also denied.

       AFFIRMED.




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