     Case: 12-10286     Document: 00512021352         Page: 1     Date Filed: 10/16/2012




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

                                                                            FILED
                                                                         October 16, 2012
                                     No. 12-10286
                                  Conference Calendar                      Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

ARTURO GUTIERREZ-RODRIGUEZ,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 7:11-CR-9-1


Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
        Appealing the judgment in a criminal case, Arturo Gutierrez-Rodriguez
raises arguments that he concedes are foreclosed by United States v. Newson,
515 F.3d 374, 377-78 (5th Cir. 2008), which held that the Government may
decline to move for an additional one-point reduction under United States
Sentencing Guidelines § 3E1.1(b) based on the defendant’s refusal to waive his
right to appeal.      Gutierrez-Rodriguez further concedes that his remaining
arguments are foreclosed as this court has repeatedly held that a sentencing

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-10286   Document: 00512021352      Page: 2   Date Filed: 10/16/2012

                                  No. 12-10286

judge may find by a preponderance of the evidence all the facts necessary to the
determination of a sentencing guidelines range. See, e.g., United States v. Rhine,
583 F.3d 878, 891 (5th Cir. 2009); United States v. Stevens, 487 F.3d 232, 246
(5th Cir. 2007); United States v. Johnson, 445 F.3d 793, 798 (5th Cir. 2006). The
Government’s motion for summary affirmance is GRANTED, the Government’s
alternative motion for an extension of time to file a brief is DENIED, and the
judgment of the district court is AFFIRMED.




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