USA v. Jose Rueda-Castaneda, No. 13-40279 (5th Cir. 2013)

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The court issued a subsequent related opinion or order on July 15, 2014.

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Case: 13-40279 Document: 00512445066 Page: 1 Date Filed: 11/18/2013 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 13-40279 Summary Calendar FILED November 18, 2013 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. JOSE LUIS RUEDA-CASTANEDA, also known as Jose Luis Rueda Castaneda, Defendant-Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 5:12-CR-689-1 Before REAVLEY, JONES, and PRADO, Circuit Judges. PER CURIAM: * Jose Luis Rueda-Castaneda (Rueda) appeals his within-Guidelines 46month sentence imposed following his guilty plea conviction for attempted illegal reentry. Rueda contends that the district court misapplied U.S.S.G. § 3E1.1(b) by allowing the Government to decline to move for the additional one-level reduction for acceptance of responsibility based on his 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 13-40279 Document: 00512445066 Page: 2 Date Filed: 11/18/2013 No. 13-40279 refusal to waive his right to appeal and that the district court should have awarded the additional acceptance point in consideration of Rueda s acceptance of responsibility. Rueda s arguments are foreclosed by United States v. Newson, 515 F.3d 374, 376-79 (5th Cir. 2008), which held that a district court may not award a reduction pursuant to § 3E1.1(b) absent a motion from the Government and that [a] defendant s refusal to waive his right to appeal is a proper basis for the Government to decline to make such a motion. The district court committed no error under the Sentencing Guidelines in effect at the time of sentencing. See United States v. Davis, 478 F.3d 266, 270 (5th Cir. 2007) (stating that construction of the guidelines is a question of law that is reviewed de novo). AFFIRMED. 2