     Case: 13-40279      Document: 00512445066         Page: 1    Date Filed: 11/18/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                        United States Court of Appeals
                                                                                 Fifth Circuit

                                                                               FILED
                                    No. 13-40279                        November 18, 2013
                                  Summary Calendar
                                                                          Lyle W. Cayce
                                                                               Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JOSE LUIS RUEDA-CASTANEDA, also known as Jose Luis Rueda
Castaneda,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 5:12-CR-689-1


Before REAVLEY, JONES, and PRADO, Circuit Judges.
PER CURIAM: *
       Jose Luis Rueda-Castaneda (Rueda) appeals his within-Guidelines 46-
month sentence imposed following his guilty plea conviction for attempted
illegal reentry.       Rueda contends that the district court misapplied
U.S.S.G. § 3E1.1(b) by allowing the Government to decline to move for the
additional one-level reduction for acceptance of responsibility based on his



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 13-40279     Document: 00512445066     Page: 2   Date Filed: 11/18/2013


                                  No. 13-40279

refusal to waive his right to appeal and that the district court should have
awarded the additional acceptance point in consideration of Rueda’s
acceptance of responsibility.
      Rueda’s arguments are foreclosed by United States v. Newson, 515 F.3d
374, 376-79 (5th Cir. 2008), which held that a district court may not award a
reduction pursuant to § 3E1.1(b) absent a motion from the Government and
that “[a] defendant’s refusal to waive his right to appeal is a proper basis for
the Government to decline to make such a motion.”             The district court
committed no error under the Sentencing Guidelines in effect at the time of
sentencing. See United States v. Davis, 478 F.3d 266, 270 (5th Cir. 2007)
(stating that construction of the guidelines is a question of law that is reviewed
de novo).
      AFFIRMED.




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