                                                                           FILED
                             NOT FOR PUBLICATION                            JUN 27 2014

                                                                        MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                     U.S. COURT OF APPEALS



                              FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-10106

                Plaintiff - Appellee,            D.C. No. 4:12-cr-01633-RCC

  v.
                                                 MEMORANDUM*
FRANCISCO JAVIER VALENZUELA-
RAMIREZ,

                Defendant - Appellant.


                     Appeal from the United States District Court
                              for the District of Arizona
                   Timothy M. Burgess, District Judge, Presiding**

                              Submitted June 25, 2014***

Before:         HAWKINS, TALLMAN, and NGUYEN, Circuit Judges.

       Francisco Javier Valenzuela-Ramirez appeals from the district court’s

judgment and challenges the 50-month sentence imposed following his guilty-plea

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
              The Honorable Timothy M. Burgess, United States District Judge for
the District of Alaska, sitting by designation.
          ***
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
conviction for reentry after deportation, in violation of 8 U.S.C. § 1326. We have

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

      Valenzuela-Ramirez contends that the government refused to move for a

third-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1(b) on

the improper basis that he would not waive his appellate rights. A defendant who

challenges the government’s refusal to move for a third point for acceptance of

responsibility must show that the government’s refusal was based on an

unconstitutional motive or was arbitrary. See United States v. Espinoza-Cano, 456

F.3d 1126, 1136 (9th Cir. 2006).

      The sole reason the government proffered in the district court for its refusal

to move for the third point was the “relatively substantial work” it had done in

preparation for trial. The government “is in the best position to (1) know what it

has and has not done in relation to trial preparation, and (2) assess whether the

defendant’s notification of an intent to plead guilty has assisted the government in

avoiding trial preparation.” Id. There is nothing in the record to support

Valenzuela-Ramirez’s suggestion that the government misrepresented its trial

preparation efforts or that it had a different motivation for declining to file the

motion for the third point than the one it offered. We, therefore, affirm.

      AFFIRMED.


                                            2                                     13-10106
