                                                                           FILED
                            NOT FOR PUBLICATION                             JUL 03 2012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,                        No. 11-30353

               Plaintiff - Appellee,             D.C. No. 4:10-cr-00105-SEH

  v.
                                                 MEMORANDUM *
LESTER MATHEWS SHARPTON,

               Defendant - Appellant.



                    Appeal from the United States District Court
                            for the District of Montana
                     Sam E. Haddon, District Judge, Presiding

                                                        **
                              Submitted June 26, 2012

Before:        SCHROEDER, HAWKINS, and GOULD, Circuit Judges.

       Lester Mathews Sharpton appeals from the 144-month sentence imposed

following his guilty-plea conviction for viewing child pornography, in violation of

18 U.S.C. § 2252A(a)(5)(B). We have jurisdiction under 28 U.S.C. § 1291, and we



          *
             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). Accordingly, Sharpton’s
request for oral argument is denied.
affirm.

      Sharpton first contends the district court erred when it applied a five-level

enhancement under U.S.S.G. § 2G2.2(b)(5) because his prior conviction for two

counts of criminal sexual contact with a minor did not constitute a “pattern of

activity.” The district court did not err. See U.S.S.G. § 2G2.2(b)(5) cmt. n.1.

      Sharpton next contends that the district court erred in denying him an

additional one-level adjustment for acceptance of responsibility under U.S.S.G.

§ 3E1.1(b). He argues that the government’s refusal to move for the third point

was arbitrary in light of the fact that the plea offer that Sharpton rejected would

have permitted an appeal challenging the enhancement under section 2G2.2(b)(5).

This argument is unpersuasive because the government’s position was not

arbitrary. See United States v. Johnson, 581 F.3d. 994, 1002-04 (9th Cir. 2009).

      Sharpton also contends that the district court procedurally erred by failing to

consider fully and to explain the 18 U.S.C. § 3553(a) sentencing factors. The

record belies this contention.

      Sharpton finally contends that his sentence is substantively unreasonable.

The within-Guidelines sentence is substantively reasonable in light of the totality

of the circumstances and the section 3553(a) sentencing factors. See United States

v. Gall, 552 U.S. 38, 51 (2007).

      AFFIRMED.


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