     Case: 10-60364 Document: 00511438162 Page: 1 Date Filed: 04/07/2011




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

                                                 FILED
                                                                             April 7, 2011
                                     No. 10-60364
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

MICHAEL CHANEY,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                      for the Southern District of Mississippi
                              USDC No. 3:09-CR-100-2


Before JOLLY, GARZA and STEWART, Circuit Judges.
PER CURIAM:*
       Michael Chaney pleaded guilty to one count of carjacking in violation of 18
U.S.C. § 2119, and one count of brandishing a firearm during the carjacking, in
violation of18 U.S.C. § 924(c). The district court sentenced him to 55 months in
prison on the carjacking count, followed by a mandatory consecutive term of 87
months for the § 924(c) offense. Chaney now appeals his sentence, arguing that
the Government improperly refused to move for a third point for acceptance of
responsibility pursuant to U.S.S.G. § 3E1.1(b), because Chaney–who denied

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-60364 Document: 00511438162 Page: 2 Date Filed: 04/07/2011

                                  No. 10-60364

ownership and possession of the subject firearm despite conceding–would not
sign a plea supplement admitting that he had an interest in the gun for purposes
of forfeiture. The Government declined to accept what Chaney contends were
reasonable alterations to the plea supplement, and Chaney pleaded guilty
without the benefit of the plea agreement, including a third point for acceptance
of responsibility.
      Chaney argues that the Government’s refusal was not rationally related
to a legitimate government end, that the district court should have ordered the
Government to make the motion, and that his resulting guidelines range was
incorrect and thus procedurally flawed. We need not reach whether Chaney’s
arguments in the district court, which were more akin to a request for a
nonguidelines sentence pursuant to 18 U.S.C. § 3553(a) than the procedural
challenge to the guidelines range he now raises, preserved his current claim.
See, e.g., United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir.), cert.
denied, 130 S. Ct. 192 (2009).     We find no error even under the ordinary
standard of review. See United States v. Newson, 515 F.3d 374, 376-78 (5th Cir.
2008).
      The Government has discretion to decide whether to move for a third point
for acceptance of responsibility. Newson, 515 F.3d at 377-78. Chaney has not
made any showing of an unconstitutional motive, a threshold requirement. See
United States v. Urbani, 967 F.2d 106, 109-10 (5th Cir. 1992). Moreover, Chaney
has not shown that the Government’s decision was not rationally related to the
purpose underlying § 3E1.1(b), a determination that the Government was in the
best position to make. We reject Chaney’s challenge to his sentence.
      AFFIRMED.




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