Opinion
No. 07-10279.
The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed July 31, 2008.
Claire Kiehl Lefkowitz, Esq., USTU-Office of the U.S. Attorney Evo A. Deconcini U.S. Courthouse Tucson, AZ, for Plaintiff-Appellee.
Mark Willimann, Esq., Tucson, AZ, for Defendants-Appellant.
Appeal from the United States District Court for the District of Arizona, Frank R. Zapata, District Judge, Presiding. D.C. No. CR-06-01438-FRZ.
Before: B. FLETCHER, THOMAS, and WARDLAW, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Jose Armenta-Alcantar appeals from the 60-month sentence imposed following his guilty-plea conviction for illegal re-entry after deportation, in violation of 8 U.S.C. § 1326(a). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Armenta-Alcantar contends that the government's refusal to move for an additional one level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1(b) is arbitrary and amounts to vindictive prosecution. The government's stated reason for not filing the motion was ArmentaAlcantar's refusal to plead pursuant to a fast-track plea agreement. The government's decision is not based on an unconstitutional motive, nor does it amount to arbitrary government action. See United States v. Espinoza-Cano, 456 F.3d 1126, 1138 (9th Cir. 2006) (finding nothing improper about the government providing an incentive to plea bargain).