United States v. Arturo Gutierrez-Rodriguez , 489 F. App'x 799 ( 2012 )

Case: 12-10286 Document: 00512021352 Page: 1 Date Filed: 10/16/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 16, 2012
No. 12-10286
Conference Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ARTURO GUTIERREZ-RODRIGUEZ,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 7:11-CR-9-1
Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
Appealing the judgment in a criminal case, Arturo Gutierrez-Rodriguez
raises arguments that he concedes are foreclosed by United States v. Newson,
515 F.3d 374, 377-78 (5th Cir. 2008), which held that the Government may
decline to move for an additional one-point reduction under United States
Sentencing Guidelines § 3E1.1(b) based on the defendant’s refusal to waive his
right to appeal. Gutierrez-Rodriguez further concedes that his remaining
arguments are foreclosed as this court has repeatedly held that a sentencing
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-10286 Document: 00512021352 Page: 2 Date Filed: 10/16/2012
No. 12-10286
judge may find by a preponderance of the evidence all the facts necessary to the
determination of a sentencing guidelines range. See, e.g., United States v. Rhine,
583 F.3d 878, 891 (5th Cir. 2009); United States v. Stevens, 487 F.3d 232, 246
(5th Cir. 2007); United States v. Johnson, 445 F.3d 793, 798 (5th Cir. 2006). The
Government’s motion for summary affirmance is GRANTED, the Government’s
alternative motion for an extension of time to file a brief is DENIED, and the
judgment of the district court is AFFIRMED.
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