                                                                                 FILED
                                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                         Tenth Circuit

                             FOR THE TENTH CIRCUIT                          January 8, 2019
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                          No. 18-7012
                                                 (D.C. No. 6:17-CR-00056-RAW-1)
MICHAEL LEON JOHNSON,                                       (E.D. Okla.)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before LUCERO, SEYMOUR, and KELLY, Circuit Judges.
                  _________________________________

      Michael Johnson appeals his sentence of 210 months, arguing that the district

court procedurally erred by failing to consider his request for a downward variance.

We conclude the district court did not so err. Exercising jurisdiction under 28 U.S.C.

§ 1291, we affirm.

                                           I

      Johnson was arrested after shooting through the front door of his ex-

girlfriend’s home. He was charged with one count of being a felon in possession of a

firearm and ammunition. Promptly after his arraignment, Johnson filed two motions

to suppress. Following a hearing, a magistrate judge recommended that Johnson’s

      *
         This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
suppression motions be denied. Faced with a deadline for pretrial documents, the

government filed its proposed voir dire, proposed jury instructions, and a trial brief

on October 24, 2017. On October 26, after reviewing Johnson’s objections and the

government’s response, the district court adopted the magistrate judge’s

recommendation to deny Johnson’s suppression motions. Later the same day,

Johnson filed a notice of intent to plead guilty.

      Johnson’s Presentence Investigation Report (“PSR”) indicated his base offense

level was 34. Because Johnson had pled guilty, his offense level was reduced by two

points for acceptance of responsibility. The government declined to move for a third

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

criminal history category of VI, Johnson’s Guidelines range was 210 to 262 months.

      Johnson moved for a downward variance to 180 months on two grounds. He

cited his advanced age and poor health, arguing that a within-Guidelines sentence

would effectively be a life sentence. Johnson also argued that the government’s

decision not to move for a third point for acceptance of responsibility was retaliation

against his filing of motions to suppress. Although Johnson acknowledged that the

government possesses discretion in determining whether to file such a motion, and

expressly conceded that it would be improper to order the government to do so, he

requested the court vary downward to offset the government’s decision. The

government responded that it declined to move for a third point based on trial

preparation independent of Johnson’s motion to suppress.



                                            2
      At sentencing, the district court accepted the PSR, and discussed Johnson’s

downward variance motion at some length. It ultimately denied the variance request

and sentenced Johnson to 210 months. Johnson timely appealed.

                                            II

      On appeal, Johnson argues that the district court procedurally erred by refusing

to consider his argument for a variance relating to the third point for acceptance of

responsibility. “A sentencing court’s failure to consider a relevant sentencing factor

is a form of procedural sentencing error.” United States v. Cerno, 529 F.3d 926, 939

(10th Cir. 2008). In considering claims of procedural error, we generally “review

legal questions de novo and factual findings for clear error.” United States v.

Mollner, 643 F.3d 713, 714 (10th Cir. 2011) (quotation omitted).1

      Before proceeding to the merits of Johnson’s claim, we note that Johnson is

not challenging the government’s decision under § 3E1.1(b). That provision allows

the government to move for a third point for acceptance of responsibility if the

defendant “timely notif[ies] authorities of his intention to enter a plea of guilty,

thereby permitting the government to avoid preparing for trial.” Id. Filing such a

motion is committed to the government’s discretion, but courts possess “limited

authority” to review whether the decision was “(1) animated by an unconstitutional

motive, or (2) not rationally related to a legitimate government end.” United States

v. Moreno-Trevino, 432 F.3d 1181, 1186 (10th Cir. 2005) (quotation omitted).

      1
        The government contends this claim was not properly preserved and is
subject to only plain error review. Because we conclude the district court did not err,
we do not need to resolve the preservation issue.
                                            3
      The government concedes that denying a third point based on the filing of a

motion to suppress would be improper. See United States v. Marquez, 337 F.3d

1203, 1211 (10th Cir. 2003) (holding, as to a prior version of the Guidelines under

which a government motion was unnecessary, that “a district court may not penalize

a defendant for bringing a non-frivolous motion to suppress by denying a reduction

under subsection (b)(2)”). Rather than basing its decision on the motions to suppress,

the government contends that it declined to file a § 3E1.1(b) motion because of other,

unrelated trial preparation it was required to undertake. It also notes that Johnson

could have moved to continue the trial date so as to permit a ruling on the motions to

suppress while also reasonably postponing the government’s pretrial work.

      In any event, the propriety of the government’s decision is not before us.

Instead, Johnson argues that the district court erred by refusing to consider a

downward variance to compensate for the denial of the third point. As Johnson

notes, the district court stated during the sentencing hearing that it was “not even

really considering the government’s failure to file the third point motion” and

indicated it had “not considered the government’s failure to file for the third point.”

      Johnson reads these comments to mean that the district court refused to

evaluate whether a variance was warranted on this basis. However, review of the

entire sentencing transcript convinces us that the district court was merely stating it

did not consider the argument meritorious. The court stated that Johnson’s

arguments “resonate somewhat,” but that they “probably aren’t going to carry much

weight with me.” It also explained that the government’s discretion as to the third

                                            4
point could have a “chilling effect, but I am not sure I’ve ever seen that,” noting that

there were “many times where the third point was conceded by the government even

though the defendant had filed a motion to suppress.” The court “recognize[d] the

defendant’s argument based on the government’s refusal to file a motion for [the]

third point” and its “authority to vary from the advisory sentencing range,” but

determined that a variance was not warranted.

      In Cerno, upon which Johnson relies, the district court incorrectly believed

that it could not consider a relevant sentencing factor. 529 F.3d at 939. Because it

acknowledged both Johnson’s argument and its own discretion to grant a variance,

the district court in this case did not “commit[] procedural error by refusing, as a

matter of law, to entertain [Johnson’s] argument” for a variance. Id. at 937.

                                           III

      AFFIRMED.


                                            Entered for the Court


                                            Carlos F. Lucero
                                            Circuit Judge




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