
    UNITED STATES of America, Plaintiff-Appellee, v. Franky ZAMUDIO-GOMEZ, Defendant-Appellant.
    No. 11-10193.
    United States Court of Appeals, Ninth Circuit.
    
      Submitted Feb. 21, 2012.
    
    Filed Feb. 24, 2012.
    Matthew G. Eltringham, Assistant U.S., USTU-Office of The U.S. Attorney, Tucson, AZ, for Plaintiff-Appellee.
    Leslie Ann Bowman, Esquire, Law Office of Leslie A. Bowman, Tucson, AZ, for Defendant-Appellant.
    Before: FERNANDEZ, McKEOWN, and BYBEE, Circuit Judges.
    
      
       The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
    
   MEMORANDUM

Franky Zamudio-Gomez appeals from the 41-month sentence imposed following his guilty-plea conviction for re-entry after deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Zamudio-Gomez contends that the district court erred by not granting a third point reduction for acceptance of responsibility under U.S.S.G. § 3El.l(b) in the absence of a government motion because the government withheld the motion arbitrarily. His argument is foreclosed by United States v. Johnson, 581 F.3d 994, 1002-04 (9th Cir.2009) (district court did not err in declining to grant additional one-level reduction because defendant’s refusal to waive appellate rights was rational basis for the government’s decision not to file a section 3El.l(b) motion).

He also contends that his sentence is substantively unreasonable in light of the 18 U.S.C. § 3553(a) sentencing factors. Zamudio-Gomez’s below-Guidelines sentence is reasonable in light of the totality of the circumstances and the sentencing factors set forth in 18 U.S.C. § 3553(a). See United States v. Treadwell, 593 F.3d 990, 1011 (9th Cir.2010) (where district court judge correctly calculated and carefully reviewed the Guidelines range, “he necessarily gave significant weight and consideration to the need to avoid unwarranted disparities”).

AFFIRMED. 
      
       This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
     