United States of America v. Javier Morales-Galvez

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAVIER MORALES-GALVEZ,
Defendant - Appellant.
No. 11-50339
D.C. No. 3:11-cr-01753-LAB
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted June 26, 2012**
Before: SCHROEDER, HAWKINS, and GOULD, Circuit Judges.
Javier Morales-Galvez appeals from the 84-month sentence imposed
following his guilty-plea conviction for being a deported alien found in the United
States, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C.
FILED
JUL 03 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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11-50339 2
§ 1291, and we affirm.
Morales-Galvez contends that the district court erred because it did not rule on
the sufficiency of the government’s rationale for refusing to make a motion for a
third point for acceptance of responsibility under U.S.S.G. § 3E1.1(b). The district
court did not err because the record reflects that the government’s reason was not
improper. See United States v. Johnson, 581 F.3d 994, 1002 (9th Cir. 2009)
(“[T]he allocation and expenditure of prosecutorial resources for the purposes of
defending an appeal is a rational basis for declining to move for the third reduction
point.”).
We decline Morales-Galvez’s request that we call for en banc review to
reconsider Johnson.
AFFIRMED.

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