                                                                             FILED
                            NOT FOR PUBLICATION                               JUN 29 2012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. 11-50469

               Plaintiff - Appellee,              D.C. No. 3:11-cr-01757-JAH

  v.
                                                  MEMORANDUM *
SAUL RIVAS-MENESES,

               Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Southern District of California
                     John A. Houston, District Judge, Presiding

                              Submitted June 26, 2012 **

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

       Saul Rivas-Meneses appeals from the 40-month sentence imposed following

his guilty-plea conviction for attempted entry after deportation, in violation of 8

U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.




          *
             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).
      Rivas-Meneses contends that the district court erred in failing to grant his

request for a third-level reduction under U.S.S.G. § 3E1.1(b) because his refusal to

waive his right to appeal was an improper basis for the government to refuse to

move for the reduction. This argument is foreclosed by United States v. Johnson,

581 F.3d 994, 1002-04 (9th Cir. 2009). We decline Rivas-Meneses’s request that

we call for en banc review to reconsider Johnson.

      Rivas-Meneses’s unopposed motion for judicial notice, filed March 16,

2012, is granted.

      AFFIRMED.




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