                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                   F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                        May 1, 2006

                                                               Charles R. Fulbruge III
                                                                       Clerk
                             No. 05-40605
                           Summary Calendar



UNITED STATES OF AMERICA,

                                       Plaintiff-Appellee,

versus

JOSE SANCHES-PENALOSA,

                                       Defendant-Appellant.

                        --------------------
            Appeal from the United States District Court
                 for the Southern District of Texas
                           (2:04-CR-418-1)
                        --------------------

Before KING, WIENER, and DeMOSS, Circuit Judges.

PER CURIAM:*

     Defendant-Appellant     Jose    Sanches-Penalosa        appeals       the

sentences imposed following his bench-trial conviction of four

counts of   transporting    aliens   within   the   United   States.        He

contends that the district court erred by (1) failing to award him

a third point for acceptance of responsibility, (2) upwardly

departing from the applicable advisory Sentencing Guideline range,

and (3) imposing a mandatory order of restitution as part of his

sentence.      We review the district court’s interpretation and


     *
       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this opinion should not be published and is not precedent except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.
application     of   the   Guidelines     de   novo     and   its   factual

determinations for clear error. United States v. Solis-Garcia, 420

F.3d 511, 513-14 (5th Cir. 2005).

     The Guidelines do not permit a district court to grant a third

acceptance point under U.S.S.G. § 3E1.1(b) without a government

motion.   See § 3E1.1, comment. (n.6).         As the government did not

make such a motion, and the district court imposed a Guidelines

sentence, the district court did not err when it declined to award

Sanches-Penalosa a third acceptance point.            See United States v.

Mares, 402 F.3d 511, 519 n.7. (5th Cir.), cert. denied, 126 S. Ct.

43 (2005).      Our review of the basis and extent of the upward

departure does not reveal an abuse of discretion.               See United

States v. Saldana, 427 F.3d 298, 308 (5th Cir. 2005).

     The district court did err, however, by imposing mandatory

restitution as part of Sanches-Penalosa’s sentence.           Accordingly,

the order of restitution is vacated, and the case is remanded for

the district court to consider whether to impose restitution as a

condition of supervised release.        All other terms of the judgment

are affirmed.

     AFFIRMED IN PART, VACATED IN PART, AND REMANDED.




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