UNITED STATES of America, Plaintiff-Appellee, v. Saul RIVAS-MENESES, Defendant-Appellant, 477 F. App'x 458

MEMORANDUM Saul Rivas-Meneses appeals from the 40-month sentence imposed following his guilty-plea conviction for attempted entry after deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm. Rivas-Meneses contends that the district court erred in failing to grant his request for a third-level reduction under U.S.S.G. § 3El.l(

b) because his refusal to waive his right to appeal was an improper basis for the government to refuse to move for the reduction. This argument is foreclosed by United States v. Johnson, 581 F.3d 994, 1002-04 (9th Cir.2009). We decline Rivas-Meneses’s request that we call for en banc review to reconsider Johnson. Rivas-Meneses’s unopposed motion for judicial notice, filed March 16, 2012, is granted. AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.