Case: 12-41034       Document: 00512346712         Page: 1     Date Filed: 08/20/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                          August 20, 2013
                                     No. 12-41034
                                  Conference Calendar                      Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JULIAN HERNANDEZ AVELINO, also known as Humberto Manuel
Hernandez,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:11-CR-97-1


Before HIGGINBOTHAM, SMITH, and GRAVES, Circuit Judges.
PER CURIAM:*
       Appealing the judgment in a criminal case, Julian Hernandez Avelino
raises an argument that he concedes is foreclosed by United States v. Newson,

, 378-79 (5th Cir. 2008), which held that the Government may
decline to move for an additional one-point reduction under U.S.S.G. § 3E1.1(b)
based on the defendant’s refusal to waive his right to appeal. Accordingly, the
Government’s motion for summary affirmance is GRANTED, its alternative


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-41034   Document: 00512346712     Page: 2   Date Filed: 08/20/2013

                                No. 12-41034

motion for an extension of time to file a brief is DENIED, and the judgment of
the district court is AFFIRMED.




                                      2