                                                                           FILED
                            NOT FOR PUBLICATION                             JAN 12 2012

                                                                        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,                        Nos. 10-10542
                                                      10-10543
               Plaintiff - Appellee,
                                                 D.C. No. 2:98-cr-00856-RCC-DTF
  v.                                             D.C. No. 4:09-cr-02813-RCC-DTF

FRANCISCO JAVIER DUARTE-
SABORI, a.k.a. Francisco Javier Duarte,          MEMORANDUM *

               Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Arizona
                     Raner C. Collins, District Judge, Presiding

                           Submitted December 19, 2011 **

Before:        GOODWIN, WALLACE, and McKEOWN, Circuit Judges.

       In these consolidated appeals, Francisco Javier Duarte-Sabori appeals from

the 63-month sentence imposed following his guilty-plea conviction for re-entry

after deportation, in violation of 8 U.S.C. § 1326, and from the consecutive four-


          *
             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).
month sentence imposed following revocation of supervised release. We have

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

      Duarte-Sabori contends that the district court erred by failing to explain its

decision to deny a departure for cultural assimilation. He also contends that his

sentence is substantively unreasonable in light of the 18 U.S.C. § 3553(a)

sentencing factors and the district court’s decision to impose a consecutive

sentence for the supervised release violation. The district court did not

procedurally err, and Duarte-Sabori’s below-Guidelines sentence is reasonable in

light of the totality of the circumstances and the sentencing factors set forth in 18

U.S.C. §§ 3553(a) and 3583(e). See Gall v. United States, 552 U.S. 38, 51 (2007);

U.S.S.G. § 7B1.3(f) (recommending that a supervised release revocation sentence

be ordered to be served consecutively to “any sentence of imprisonment that the

defendant is serving”).

      Duarte-Sabori also contends that the government acted arbitrarily by refusing

to move for a third point reduction for acceptance of responsibility under U.S.S.G.

§ 3E1.1(b). His argument is foreclosed by United States v. Johnson, 581 F.3d 994,

1002-04 (9th Cir. 2009) (district court did not err in declining to grant additional

one-level reduction because defendant’s refusal to waive appellate rights was

rational basis for the government’s decision not to file a section 3E1.1(b) motion).


                                           2                            10-10542& 10-10543
AFFIRMED.




            3   10-10542& 10-10543
